sulted with a view of ascertaining which action was intended (Rodgers v. Rodgers, 11 Barb. 596; Chambers v. Lewis, 2 Hilton, 591; 10 Abb. 206; 11 Abb. 210; Cornes v. Harris, 1 N. Y. 223). And where the complaint was so framed that it was a matter of doubt whether it was intended as consisting of one or of two causes of action, but it contained allegations constituting a cause of action on contract and a cause of action for a tort,-held that all the allegations not material to the cause of action on contract might be struck out as irrelevant or redundant (Hunter v. Powell, 15 How. 221). Generally where an equivocal or ambiguous expression is used, it is to be construed against the party using it (13 Eng. Com. Law Rep. 175; 30 id. 243; Bates v. Rosekrans, 23 How. 98; Beach v. Bay State Co. 10 Abb. 71); but if the opposite party pleads over, then that construction is to be adopted which will support the previous pleading (id.) Where the parties go to trial on an issue of fact, the pleadings objected to will be construed with greater liberality than where the objection has been pointed out by demurrer (St. John v. Northrup, 23 Barb. 26; and see Cady v. Allen, 22 Barb. 394); or motion (Wall v. Buffalo Water Works, 18 N. Y. 119); the language of a pleading is to have a reasonable construction; and when a matter is capable of different meanings, that shall be taken which will support the pleading, and not the other which will defeat it (Allen v. Patterson, 7 N. Y. 480; Olcott v. Carroll, 39 N. Y. 436; Quintard v. Newtown, 5 Rob. 72; and see Sheddon v. Patrick, 28 Eng. Law and Eq. R. 68; Moore v. Foster, 5 Com. B. 220; and see 5 Beav. 41; 3 id. 285; 2 Myl. & Cr. 145). The law will not assume in favor of a party any thing he has not averred (Cruger v. Hudson River R. R. Co. 12 N. Y. 201).

a. General statements in a pleading, which are evidently qualified, and intended to be qualified, by subsequent parts, must be taken accordingly with such qualification (Page v. Boyd, 11 How. 416); thus where the condition was that all suits in the supreme court were to be discontinued, meaning three ejectment suits in the name of P. M. H., one against Norman P., one against Nelson P., and one against S. D., and the allegation of performance was that all suits in the supreme court were discontinued, as in the condition of said bond stipulated, meaning these ejectment suits in the name of P. M. H. against Nelson P. and one against S. D., nothing being said as to the suit against Norman P., and it not appearing to have been in any way discontinued,held on demurrer that the complaint was defective, for not showing performance of the stipulations as to the suit of Norman P. (Hatch v. Peet, 23 Barb. 575).

b. Where there is an averment of a legal conclusion at variance with an admitted fact, the fact will be regarded and the legal conclusion disregarded (Jones v. The Phoenix Bank, 8 N. Y. 235; Robinson v. Stewart, 10 N. Y. 189); and the averment of a mere conclusion, without any fact to warrant it, is always disregarded (Schenck v. Naylor, 2 Duer, 678; and see Mann v. Morewood, 5 Sand. 566; Garr v. Selden, 4 N. Y. 91; Siblee v. Waffle, 16 N. Y. 180; Burrall v. Bowen, 21 How. 378); and this has been held of an allegation that the defendant is indebted or remains indebted (Chamberlain v. Kaylor, 2 E. D. Smith, 139); that a defendant was liable under a special contract (Lewis v. Acker, 11 How. 163); that an instrument was a mortgage (Fairbanks v. Bloomfield, 2 Duer, 354); and so of the allegation "unlawfully converted " (id. 354), or that an obstruction was a flagrant nuisance (Hentz v. L. I. R. R. Co. 13 Barb. 647; and see in note to § 160, post; Decker v. Matthews, 12 N. Y. 321; St. John v. Griffith, 1 Abb. 40).

c. A positive denial of fraud in an answer will not prevail against admissions in the same answer of facts which show that the transaction was fraudulent (Robinson v. Stewart, 10 N. Y. 189; and see Wight v. Prescott, 2 Barb. 196; Dykers v. Woodward, 7 How. 313.)

d. An allegation that "the sheriff suffered and permitted such person to escape" states a voluntary and not a negligent escape (Loosey v. Orser, 4 Bosw.

e. Where a party is shown to be owner of property on a certain day, it

need not be alleged that he continued such owner, the fact of his continuing owner will be presumed (Van Rennsselaer v. Bonesteel, 24 Barb. 366).

a. An averment that an agent acted by due authority is sustained by proof of subsequent ratification (Hoyt v. Thompson's Executors, 19 N. Y. 208). b. To state in a pleading, the nature and source of the information upon which the party relies in making an averment on information and belief, does not vitiate the allegation, nor does prefixing the word "therefore" to an allegation render the allegation the less an allegation of fact (Borrowe v. Millbank, 5 Abb. 28).

c. A complaint, stating a promissory note, whereby the maker promised to pay the defendants named, "trading and doing business under the partnership name or firm of C. J. & Co., and that said note was duly indorsed by said defendants by their said partnership name, sufficiently avers the partnership; an answer, denying " the indorsement in the complaint alleged," does not put the partnership in issue (Anable v. Conklin, 25 N. Y. 470).

d. An allegation that a deed was procured by "false and fraudulent representations and by undue influences," is not an allegation of fraud (Butler v. Viele, 44 Barb. 159).

e. The allegation that defendant subscribed to so many shares of stock implies that defendants were owners of those shares (Oswego Plank R'd Co. v. Rust, 5 How. 390).

*

f. An allegation "that Abner Sanford was appointed to collect the money, * and that no personal demand was made by the said Abner Sanford," does not imply that no personal demand was made by any person authorized to receive the sum demanded, and other than the said Abner Sanford (Manice V. Mayor of N. Y. 8 N. Y. 132).

g. An allegation that plaintiff's intestate was in the employ of defendants as an engineer upon their locomotive while it was in their service,-held sufficient to show the relation of master and servant between the parties (M'Millan v. Saratoga R'lroad Co. 20 Barb. 452).

h. From an allegation that plaintiff was the owner and entitled to certain real estate, it cannot be inferred that he ever was in possession of such real estate (Carpenter v. Stillwell, 3 Abb. 460).

i. In an action on a policy of insurance against fire, proof that there was no force-pump in the building destroyed is admissible under an allegation in the answer that the plaintiff, on his application for insurance, warranted that the building contained such force-pump, and that he removed the same before the fire (McComber v. The Granite Ins. Co. 15 N. Y. 495).

j. An allegation that certain drafts were accepted by a corporation, by their treasurer, includes an averment of authority to the treasurer to accept the drafts (Partridge v. Badger, 25 Barb. 146).

k. In an action for damages caused by the defendant leaving a ditch open and unguarded, the complaint stated that plaintiff fell into it" without any fault or want of care." The answer denied that "plaintiff, without any fault or want of care," did fall therein,-held, that this put in issue the falling into the ditch, and the exercise of proper care by plaintiff (Wall v. Buffalo Water Works, 18 N. Y. 119; Livingston v. Hammer, 7 Bosw. 670).

1. Where a deed is set up in an answer, it is not sufficient to say it was "executed in due form of law;" delivery and acceptance also must be averred (Whitlocke v. Fiske, 3 Edw. Ch. 131; and see 19 Ñ. Y. 232; 30 Barb. 492).

m. Knowledge of the party means of the party making the contract (Hickman v. Fernie, 3 M. & W. 517). Where the plaintiff avers facts amounting to an excuse for not giving notice of nonpayment, and proves such facts on the trial, he may recover, although he has also averred notice and gives no proof thereof (Purchase v. Mattison, 6 Duer, 587).

n. Allegation of making a written instrument implies a delivery (Prindle v. Caruthers, 15 N. Y. 426); allegation that defendant accepted implies a due acceptance (Graham v. Machado, 6 Duer, 514; B'k of Lowville v. Edwards, 216); no award means no valid award (Dresser v. Stansfield, 14 M. & W. 822);

no memorial means no valid memorial (Hicks v. Cracknell, 3 M. & W. 77; taking means an unlawful taking (Childs v. Hart, 7 Barb. 372); conversion means wrongful conversion (Young v. Cooper, 6 Ex. 62); indorsed means lawfully indorsed (Mechanics' B'k Association v. Spring Valley Shot Co. 25 Barb. 521; and see Price v. McClave, 6 Duer, 544; Bank of Geneva v. Gulick, 8 How. 57); and includes delivery (B'k of Lowville v. Edwards, 11 How. 216; see 8 M. & W. 494); entry on land means lawful entry (Turner v. McCarthy, 4 E. D. Smith, 248); sold implies "a sale and delivery" (Clark v. Meigs, 13 How. 467); negligence includes gross as well as ordinary negligence (Nolton v. West. R. R. Corp. 15 N. Y. 450; Edgerton v. N. Y. & Harlem R. R. 35 Barb. 389); overpayment means an overpayment in money (Mann v. Morewood, 5 Sand. 557); sole heir at law implies heirship and only heir (St. John v. Northrup, 23 Barb. 26); signed means made, applied to a promissory note (Price v. McClave, 6 Duer, 544; B'k of Geneva v. Gulick, 8 How. 57); lease in writing means a parol lease (Vernam v. Smith, 15 N. Y. 332); agreement implies written agreement (Young v. Austin, Law Rep. iv. 554, C. P.); furnished proof of interest does not imply an interest (Williams v. Ins. Co. of N. A. 9 How. 374); stating the recovery of a judgment and that it is a lien, implies that it was docketed (Cady v. Allen, 22 Barb. 394).

a. To what time allegations in pleadings refer.-The allegations in a pleading, in the absence of any averment to the contrary, are construed as referring to the time when the pleading is verified or served, and not to the time when the action was commenced, or the accrual of the cause of action (Fisher v. Ford, 12 Adol. & El. 654; Faithful v. Ashley, 1 Q. B. 183; Prindle v. Caruthers, 15 N. Y. 426; Wheeler v. Heermans, 3 Sand. Ch. 597; Rice v. O'Conner, 10 Abb. 362). To an allegation of the complaint that the defendant is the owner, an allegation in the answer that he is not the owner, was held uncertain, and that it should go further and allege that he was not such owner at the time of the commencement of the action (Martin v. Kanouse, 2 Abb. 329; see Dendy v. Powell, 3 M. & W. 442; Moltan v. Torrance, 9 Wheat. 537; Warwick v. Beswick, 10 B. & C. 676; Boyd v. Weeks, 2 Den. 222).

§ 160. (Am'd 1849.) Irrelevant or redundant. Indefinite or uncertain.

If irrelevant or redundant matter be inserted in a pleading, it may be stricken out, on motion of any person aggrieved thereby. And when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment.

b. Redundant.-Redundant and irrelevant are not equivalent terms Matter which is irrelevant, it is true, is also redundant; but the converse is not true. A needless repetition of material averments is redundancy; although the facts averred, so far from being irrelevant, may constitute the whole cause of action (Bowman v. Sheldon, 5 Sand. 660). Allegations of aggravating circumstances in an action for malicious prosecution, held not to be redundant (Brockleman v. Brandt, 10 Abb. 141). It is matter which might be proved under a general denial, and is not irrelevant (Hollenbeck v. Clow, 9 How. 292; see Maretzek v. Cauldwell, 2 Rob. 715; Smith v. Trafton, 3 Rob. 709, that mitigating circumstances cannot be struck out as irrelevant nor made definite and certain). To a complaint alleging want of probable cause, the answer, after denying the allegation of the complaint, set up as a defense that defendant had probable cause,-held redundant (Rost v. Harris, 12 Abb. 446; see Benedict v. Seymour, 6 How. 303). It is taking issue on an allegation of

the complaint (King v. Utica Ins. Co. 6 How. 485; Anon. 2 Code Rep. 6; Maretzek v. Cauldwell, 19 Abb. 38).

a. Irrelevant.-Matter is irrelevant in a pleading which has no bearing on the subject-matter of the controversy, and cannot affect the decision of the court (Fabricotti v. Launitz, 1 Code Rep. N. 8 121; Stafford v. Mayor of Albany, 6 Johns. 25; Van Rennselaer v. Brice, 4 Paige, 177; Lee B'k v. Kitching, 11 Abb. 435; Cahill v. Palmer, 17 Abb. 196; Dovan v. Dinsmore, 33 Barb. 86). If material only as affecting the damages (Root v. Foster, 9 How. 37), or the costs, it is not irrelevant (Van Rensselaer v. Brice, 4 Paige, 177). Hence, the true test of the materiality of averments sought to be struck out is, to inquire whether such averments tend to constitute a cause of action or defense; and if they do, they are not irrelevant (Ingersoll v. Ingersoll, 1 Code R. 102; Averill v. Taylor, 5 How. 476; Minor v. Terry, 6 How. 208; Quintard v. Newton, 5 Rob. 72).

b. Where the plaintiff applies to strike out a denial as being a denial of an immaterial allegation,-in such a case it seems a good test to ask the plaintiff if he will consent to strike out the allegation in his complaint; if he consent, then to grant his application; if he will not consent, then to deny his application (Curts v. Surridge, 9 Q. B. 1015; and Tallis v. Tallis, 16 Jur. 744; 11 Eng. Law and Eq. Rep. 457). But this is not a general rule of practice (id.) c. After stating the facts on which the pleader relies to establish his cause of action or defense, it may sometimes be necessary, to insure certainty, to add the conclusion which he draws from such facts; but the statement of such conclusion would never vitiate the pleading, and probably would not be struck out as redundant. Thus, where a complaint, after stating the facts, proceeded: "Whereupon the plaintiff became entitled to the possession of the said note," the court said, "It was probably not necessary to state this conclusion upon the facts stated; but it can do no harm" (Decker v. Matthews, 12 N. Y. 321; Gould v. Williams, 9 How. 51; St. John v. Griffith, 1 Abb. 40; Meyer v. Collen, 28 Barb. 230; and see Lee Bank v. Kitching, 7 Bosw. 664; 11 Abb. 439; Bridge v. Paysan, 5 Sand. 216; where such an allegation was held to be irrelevant). d. In an action against an indorser of a note, an answer that the defendant did not receive the notice of presentment and dishonor, would be irrelevant (Edgerton v. Smith, 3 Duer, 614).

e. Where a plaintiff has an option either to sue on contract or tort, and he elects to sue on contract in the form for money received to plaintiff's use, all allegations as to fraud on the part of the defendant, in reference to the alleged cause of action, are redundant and irrelevant (Sellar v. Sage, 12 How. 531; 13 id. 230; Lee v. Elias, 3 Sand. 736; and see Lamoreaux v. Atlantic Mut. Ins. Co. 3 Duer, 681).

f. Uncertainty.-Wherever the pleader desires to show a conclusion different from that which the law would, prima facie, draw, he must state the facts which remove such prima facie conclusion; but if, instead of stating the facts, the pleader merely states the conclusion, the fault is uncertainty, not insufficiency, and the remedy of the opposite party is, by motion, to have the pleading made certain, by amendment (Martin v. Kanouse, 11 How. 568; 2 Abb. 327; see Eno v. Woodworth, 4 N. Y. 253).

g. Time.-If the time when a fact happened is material to constitute the cause of action, it should undoubtedly be stated. The fact without the time would be insufficient to constitute the cause of action; but if the time is immaterial, a demurrer will not lie for omitting to state it (The People v. Ryder, 12 N. Y. 439; Bryant v. Bryant, 2 Rob. 212). The remedy is by motion to make the pleading definite and certain (id.; and see, to the same effect, Barnes v. Mattison, 5 Barb. 378; Nash v. Brown, 18 Law Jour. Rep. N. S. [C. P.] 62; Payne v. Banner, 15 id. 227; Marshall v. Powell, 13 Jurist, 126). The day on which it is alleged, in pleading under a videlicet, that an act is done, is usually immaterial; and if a day stated under a videlicet is inconsistent with any allegation of the pleading, the allegation of the day may be regarded as surplusage (Lester v. Jewett, 11 N. Y. 460; Lyon v. Clark, 8 N. Y. 148; Ive v. Scott, 9

Dowl. Pr. C. 993; Dubois v. Beaver, 25 N. Y. 123; see Zorkowski v. Zorkowski, 3 Rob. 613). In an action for slander, the allegation of the time of uttering the slander is immaterial (Potter v. Thompson, 22 Barb. 87).

a. Where it is important to show that a particular fact alleged in a pleading occurred after the happening of some other event, it is in most cases sufficient to allege that such fact occurred after such other event (Martin v. Kanouse, 2 Abb. 331; Kellogg v. Baker, 15 Abb. 287; and see Brown v. Harmon, 21 Barb. 510; Beesley v. Dolby, 6 Bing. N. C. 37); but an allegation that plaintiff was not advised of fraud until long after, is uncertain (Johnson v. Johnson, 5 Ala. R. N. S. 101; and see Bertine v. Varian, 1 Edw. Ch. R. 343).

b. A declaration for goods sold, &c., which did not allege the time of sale,— held sufficient on special demurrer (Lane v. Thelwell, 3 Cr. M. & R 140); so was a declaration which made profert of letters testamentary, but omitted the date when the letters were granted (Hughes v. Williams, 2 Cr. M. & R. 331). The day on which it is alleged, in a declaration in trespass for mesne profits, that the plaintiff was ejected, and that on which possession was recovered by him, are not material (Ive v. Scott, 9 Dowl. P. C. 993). By not material is meant it may be departed from in evidence; but allegations in respect to time, like all other allegations, are evidence against the party making them, as his admissions (Andrews v. Chadbourne, 19 Barb. 149). An allegation in a complaint that the "plaintiff afterwards, to wit," on a day specified, paid certain moneys, does not preclude him from showing that the payment was made at an earlier day, for the purpose of claiming interest (Lyon v. Clark, 8 N. Y. 418; see Dubois v. Beaver, 25 N. Y. 123).

c. Place. Where a plaintiff seeks to enforce in the courts of this State a contract which by the laws of this State is void, he must state where the contract was made, and that by the law of the place where made it was valid (Thatcher v. Morris, 11 N. Y. 440). And whenever the matters pleaded are local in their nature, the allegation of place is material and the subject of the issue (Vermilyea v. Beatty, 6 Barb. 429; Beach v. Bay State Co. 10 Abb. 71).

d. An omission to allege the time and place at which an act stated in a pleading was done, does not render the pleading insufficient or demurrable (Carpenter v. Brown, 6 Barb. 147; see Beach v. Bay State Co. 10 Abb. 71; Ryalls v. Bramall, 1 Ex. 734); although "when one agrees to sell and deliver at a particular place, and the other agrees to receive and pay, an averment by the purchaser of a readiness and willingness to receive and pay at that place, in case he sues for a nondelivery, is indispensable to a good complaint' (Clarke v. Dales, 20 Barb. 65)—yet if in such a case the complaint alleges a general readiness and willingness on the part of the plaintiff to perform his part of the contract, this would imply a readiness and willingness to perform at the particular place.

e. Quantity.-Allegations with regard to quantity are rarely necessary unless the subject of the averment is a record, a written instrument, or an express contract (Van Rensselaer v. Jones, 2 Barb. 643).

f. Value.-Allegations and proof of value only go to the quantum of damages. Allegations of value are not traversable (McKenzie v. Farrell, 4 Bosw. 193; Stewart v. Binsee, 10 Bosw. 436; Cannos v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 id. 13; Woodruff v. Cook, 25 Barb. 505; Waggoner v. Betts, 4 Monroe, 7; Haley v. Caller, 1 Ala. R. 63; see, however, Gregory v. Wright, 11 Abb. 471; Holmes v. Hodgson, 8 Moore, 379; Bertie v. Pickering, 4 Burr, 245; Scott v. Jones, 4 Taunt. 865; Phillips v. Jones, 19 Law Jour. Q. B. 374).

g. Names of persons.-The omission of the first names of persons in pleadings (unless excused by averment) makes the pleadings indefinite and uncertain (Applemans v. Blanche, 14 M. & W. 154; Esdale v. M'Lean, 15 id. 277). [The averment of excuse is that the first name is unknown to the pleader. This averment, although in this respect necessary, is not traversable. It