is necessary to show that the pleader has made the pleading as certain as it was in his power to make it.] See § 175, post.

a. Allegations held not sufficiently certain.-That referees duly made their award (Everard v. Paterson, 6 Taunt. 645; 2 Marsh, 304). That plaintiff was duly appointed administrator (Beach v. King, 17 Wend. 17); duly appointed receiver (Gillett v. Fairchild, 4 Denio, 83; White v. Joy, 13 N. Y. 86). That an act was done in a "suspicious manner" (Muir v. Kaye, 4 Taunt. 34); or "according to statute" (Walker v. Maxwell, 1 Mass. 104); contrary to statute (Smith v. Lockwood, 13 Barb. 209); or that the defendant had made "repeated acknowledgments" (Bloodgood v. Bruen, 8 N. Y. 366); or that "by virtue of a certain writ or other warrant" (1 Saund. 298, n. 1); or that it was done" in due course of law" (Currie v. Henry, 2 Johns. 437); or that he was "compelled to pay" (Packard v. Hill, 7 Cow. 442, 1 Wend. 209); or that plaintiff is indebted on account of previous transactions (Wiggins v Gans, 3 Sand. 738; Eno v. Woodworth, 4 N. Y. 253). Other necessary charges (Barker v. Thorold, 1 Saund. 47).

b. That defendant was bound to repair (Casey v. Munn, 5 Abb. 91); that a ship was seized "as prize" (Bead v. Tyrrell, Carth. 31); that the instrument sued on had become void (Lewis v. Preston, 1 Show. 290); that a party had been "guilty of contempt as well by acts as by words" (Collett v. Shrewsbury, 2 Leo. 34); or that he did "not detain" (Rex v. Winton, 5 Term R. 89); a large sum (16 N. Y. 122); covenanted (14 N. Y. 544). That S. failed to fulfill his obligations by virtue of said instrument (Van Shaack v. Winne, 16 Barb. 95); that each plaintiff is a creditor in the sum of $100 and upwards (Gray v. Kendall, 5 Bosw. 666); that A is a creditor on several promissory notes of said firm (id.); that services and materials were done and supplied, at the times and about the matters and at the prices specified in an account already delivered (Farcey v. Lee, 10 Abb. 143); that a judgment obtained in the name of another belongs to plaintiff (Martin v. Kanouse, 2 Abb. 327); that plaintiff, at defendants' request, rendered to defendants other services as agent, for which he is entitled to have, as a fair reward, $50; also for work, labor and services done and material furnished by plaintiff for defendants (Chesbrough v. N. Y. & Erie R. R. Co. 13 How. 557); that it appeared on the face of the complaint that certain persons ought to be parties, and that a complete determination of the action could not be had without their presence (Gassett v. Crocker, 10 Abb. 133); facts anticipating and avoiding the defense of the statute of limitations (Butler v. Mason, 5 Abb. 40).

c. When the facts are not really stated with sufficient certainty, the introduction of the words "certain" (13 East, 102, 116; 1 B. and P. 98, 102; 2 id. 120, 265; Bennett v. Ex'ors of Pixley, 7 Johns. 249), "duly," "lawfully,' sufficient," will not avail to make the fact certain (Van Ness v. Hamilton, 19 Johns. 349).

d. Less definiteness and certainty is required when the facts lie more in the knowledge of the opposite party than of the pleader.-This was the rule formerly (Stephen's Plead. 370). If the pleader alleges he is heir, he must show his pedigree, and how he became heir; but if he alleges his opponent is heir, that is sufficient without more (2 Saund. 7 c. note; see St. John v. Northrop, 23 Barb. 26; Richards v.Edick, 17 id. 270). In alleging the opposite party to be an assignee, it is not necessary to state how he became assignee (Norton v. Vultee, 1 Hall, 384). A person claiming as next of kin should show how he was related to the deceased (Public Adm. v. Watts, 1 Paige, 348). A policy of insurance in possession of the opposite party was held to be described with sufficient certainty, where it stated the names of the insurer and the insured, that it was on the furniture in defendant's tavern in Norwich, and that it was for $1,000 (Nellis v. De Forrest, 16 Barb. 67). Where a complaint stated the circumstances under which the defendant made an assignment for the benefit of creditors, and set forth the whole assignment, and then alleged that the assignment was fraudulent and void on its face, and was made to hinder, delay and defraud credit

ors,-held sufficiently definite and certain, and that it was not necessary to state why it was fraudulent and void on its face (Hastings v. Thurston, 18 How. 530; 10 Abb. 418). An answer alleging that a judgment relied upon by the plaintiff was obtained by fraud between parties named, is sufficiently certain (Culver v. Hollister, 17 Abb. 405).

a. A complaint which stated that at a specified time defendants received, as agents of plaintiff, from a specified party, certain sums of money, amounting to a certain sum, and then stated a demand of payment and refusal,—held neither indefinite nor uncertain (Sloman v. Schmidt, 8 Abb. 5).

b. Remedy for irrelevancy, uncertainty, &c.-To make a pleading definite and certain, or to strike from it irrelevant or redundant matter, the remedy is by motion, not by demurrer (see ante, p. 204, e.) An entire pleading cannot be stricken out as irrelevant or redundant (Benedict v. Dake, 6 How. 352; Nichols v. Jones, ib. 355; Hull v. Smith, 8 ib. 150; Howell v. Knickerbocker Life. Ins. Co. 24 How. 475; Blake v. Eldred, 18 How, 240; Fasnacht v. Stehn, 5 Abb. N. S. 338; 53 Barb. 650; Collins v. Coggell, 7 Rob. 81). A party cannot on the trial object to a pleading as indefinite or uncertain (Farmer's Bank of L. I. v. Sherman, 6 Bosw. 181; 30 N. Y. 655; see Martin v. Kanouse, 2 Abb. 331.) Omitting to move to strike out or to make definite and certain, is an admission that defendant understands the nature of the charge and is prepared to meet it (Quintard v. Newton, 5 Rob. 72). A complaint cannot be dismissed at the trial because it contains irrelevant or redundant matter (Simmonds v. Eldridge, 19 Abb. 296; Smith v. Countryman, 30 N. Y. 655).

c. The indefiniteness and uncertainty to be relieved on motion is only such as appears on the face of the pleading (Brown v. So. Mich. R. R. Co. 6 Abb. 237).

d. Motions to strike out parts of a pleading as irrelevant or redundant are substitutes for special demurrers (Kellogg v. Baker, 15 Abb. 287; Lee Bank v. Kitching, 11 Abb. 439; 7 Bosw. 664). They are not to be encouraged (Moloney v. Dows, 15 How. 261). And matter, though clearly redundant, if not tending seriously to prejudice the opposite party or encumber the record, will not be stricken out. The opposite party is not aggrieved (Clark v. Harwood, 8 How. 470; White v. Kyd, 4 id. 68; Hynds v. Griswold, 4 id. 69; Harlow v. Hamilton, 6 id. 476; Brockleman v. Brandt, 10 Abb. 141). On the other hand, it has been said that a party is aggrieved by every unnecessary allegation (Carpenter v. West, 5 How. 53; Isaac v. Velloman, 3 Abb. 464); and again, "if the matter cannot be made the subject of a material issue, it has no business in the pleading, and ought not to be left there (Rens. Plank Road Co. v. Wetsel, 6 How. 68; Stewart v. Bouton, 6 id. 71). "If the matter cannot be made the subject of a material issue, or affect the question of an injunction, or costs, or other relief to be granted, and embarrasses the opposite party and the court, it has no business in the pleading" (Martin v. Kanouse, 2 Abb. 331; Aubrey v. Fiske, 1 Trans. App. 246; see Farmer's Bank of L. I. v. Sherman, 6 Bosw. 181; 30 N. Y. 655).

e. Scandalous.-The court may strike out scandalous matter (Bowman v. Sheldon, 5 Sand. 660; Carpenter v. West, 5 How. 53; Mussina v. Clark, 17 Abb. 188; Opdyke v. Marble, 18 Abb. 266, 375).

f. Motion, when and how made.-The motion must be made before demurring to or answering the pleading objected to, and within twenty days from the service of such pleading (N. Y. Ice Co. v. N. West. Ins. Co. 12 Abb. 74); original or amended (Walker v. Granite B'k, 1 Abb. N. S. 406); and before noticing the issue for trial (Kellogg v. Baker, 15 Abb. 287). The motion papers should point out the precise parts objected to (Benedict v. Dake, 6 How. 352; Blake v. Eldred, 18 How. 240; Bryant v. Bryant, 2 Rob. 612). But it seems they need not show affirmatively that the motion is made in time. If not made in time, it is for the opposite party to object (Barber v. Bennett, 4 Sand. 705). A stipulation extending the time for the defendant to answer, and to make such application as he should be advised, operates to extend the

time to move under this section (Lackey v. Vanderbilt, 10 How. 155). But obtaining an order for time to answer or reply, without any reservation, or noticing the cause for trial, is a waiver of the right to move under this section (Miln v. Vose, 4 Sand. 660; Esmond v. Van Benschoten, 5 How. 44; Bowman v. Sheldon, 5 Sand. 657; Marry v. James, 34 How. 238). If after notice of motion to strike out parts of the complaint, and before the motion is heard, the defendant serves his answer, he thereby waives his motion (Goch v. Marsh, 8 How. 439). Where portions of a pleading are on motion struck out as irrelevant, it is not necessary to serve a copy of the pleading without the parts struck out (Ross v. Dinsmore, 12 Abb 4; 20 How. 328).

4. Appeal.-An appeal lies from an order to make a pleading definite and certain (Arrieta v. Morrisey, 1 Abb. N. S. 439). The operation of the order may be suspended pending the appeal by a stay of proceedings (Culver v. Hollister, 17 Abb. 405).

§ 161. Judgments, how to be pleaded.

In pleading a judgment, or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made. If such allegation be controverted, the party pleading shall be bound to establish, on the trial, the facts conferring jurisdiction.

b. Foreign judgment.—“This section does not apply to foreign judgments; and a general averment of jurisdiction of a foreign tribunal would not be sufficient" (Hollister v. Hollister, 10 How. 539; and see Barnes v. Harris, 3 Barb. 603; Ayres v. Covill, 18 id. 260; Bement v. Wisner, 1 Code Rep. N. S. 143). Therefore a complaint on a judgment of a foreign court of inferior jurisdiction must state facts showing that the court had jurisdiction, both of the person and of the subject-matter (McLaughlin v. Nichols, 13 Abb. 244). A complaint on a judgment of a circuit court of another State, e. g., the Warren county circuit court of New Jersey, must aver the existence either of a general jurisdiction in that court, or of a limited jurisdiction which extended to the cause of action for which the judgment was recovered, whatever it was, and also that the court had obtained jurisdiction of the person of the defendants (id.; contra, Halstead v. Black, 17 Abb. 227). Need the place where the court was held be alleged? (Duyckinck v. Clinton Mut. Ins. Co. 3 Zab. 279). c. As to judgments obtained in Canada, see Laws 1868, ch. 596.

d. Domestic judgment.-In pleading any determination of a court or officer of limited jurisdiction within this State, such a judgment or determination may simply be alleged to have been duly given or made. If that be denied, jurisdiction and all jurisdictional facts must be proved (Wheeler v. Dakin, 12 How. 542) .Thus, in pleading an insolvent discharge, it is sufficient to say that the judgment or determination of the officer granting the discharge was duly given or made (Livingston v. Oaksmith, 13 Abb. 183). The officer should be designated (Carter v. Koezley, 14 Abb. 147). In pleading a by-law, it is sufficient to allege that the by-law was "duly made and passed (Wilson v. Fort Hope, 10 U. Č. Q. B. Rep. 406). The pleader should allege, substantially that the judgment was "duly given or made" (Hunt v. Dutcher 13 How. 538; see Rowland v. Phalen, 1 Bosw. 44; Carter v. Koezley, 14 Abb. 150).

§ 162. (Am'd 1851.) Conditions precedent, instrument for payment of money only.

[1.] In pleading the performance of conditions precedent in a

contract, it shall not be necessary to state the facts showing such performance; but it may be stated generally that the party duly performed all the conditions on his part; and if such allegation be controverted, the party pleading shall be bound to establish on the trial the facts showing such performance. [2.] In an action or defense founded upon an instrument for the payment 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 to him thereon from the adverse party a specified sum, which he claims.

a. Conditions precedent.-A complaint which alleged that plaintiff had "fully and faithfully" performed,-held equivalent to alleging that he had duly performed (Rowland v. Phalen, 1 Bosw. 44); and in Wood v. Lilley (not reported) Hoffman, J., held, that alleging the plaintiff "performed," without the word duly or any equivalent term, was sufficient (see Adams v. Sherrill, 14 How. 299). Where the note in suit was payable at a particular place, and the complaint did not allege presentment at that place, but only that it was duly presented,-held sufficient (Gay v. Paine, 5 How. 108; Ferner v. Williams, 14 Abb. 215). Where to entitle a plaintiff to recover, he must show performance of a condition precedent, or a valid excuse for its nonperformance, and there has been no performance, but the plaintiff intends to rely on the excuse; in that case the complaint must state the facts in excuse, and not state that he duly performed; for under an allegation of performance, evidence in excuse of nonperformance is not admissible (Oakley v. Morton, 11 N. Y. 33; Garvey v. Fowler, 4 Sand. 665; Clark v. Crandall, 27 Barb. 73; Holmes v. Holmes, 9 N. Y. 525; Hosley v. Black, 28 N. Y. 438).

b. Action on instrument for payment of money only.—The meaning of the last clause of section 162, is that, instead of setting forth the instrument according to its legal effect, it is sufficient to give a copy of it (Conklin v. Gandull, 1 Keyes, 231). A complaint, in an action against B. F. & G., alleged that defendants, B. & F., made their copartnershi ppromissory notes in the words and figures following: Date,-four months after date, we promise to pay to order of G., $200-signed B. & F.,-the note was indorsed by G. That plaintiffs are holders and owners of said note, and that the whole amount thereof is due from defendants thereon-defendant G. demurred that complaint did not state facts sufficient, &c. The demurrer was sustained (Conkling v. Gandall, 1 Keyes, 228). The complaint was good as against B. & F., but not against G., as not showing demand of payment of note and notice of dishonor (id.) This decision is scarcely reconcilable with, but seems better law than, the dictum in Prindle v. Caruthers, 15 N. Y. 220; that in cases of an action on a written instrument for the payment of money only, whether the action is by the original party or by an assignee or indorsee, it is sufficient to give a copy of the instrument, and to state that there is due thereon, to the plaintiff. from the adverse party, a specified sum, which he claims. But the decisions in Conklin v. Gandall and Prindle v. Caruthers are quite consistent. In the latter case the complaint set out a copy of the instrument, whereby the defendant promised to pay a sum of money to H. C., and then alleged "that the contract is the property of the plaintiff by purchase," that the defendant is justly indebted to plaintiff on said contract, $200, which plaintiff claims. It was on demurrer held sufficient. A complaint by indorsees, which stated only “there is due to plaintiff from defendants $2,400, with interest from, &c., on a written instrument, of which the following is a copy (here followed copy of a promissory note payable to defendant's order, with copies of their signatures and of the indorsements). That plaintiffs have duly performed all the conditions in said contract on their part, and claim the said sum and interest”—was held

Here the

sufficient (Butchers' B'k v. Jacobson, 15 Abb. 220; 24 How. 204). words in italics supply the defect in the complaint in Conklin v. Gandall. The preceding cases seem definitely to settle the construction of this portion of the section. The previous decisions are very conflicting (see Gay v. Paine, 1 Duer, 602; Woodbury v. Sackrider, 2 Abb. 404; Ranney v. Smith, 6 How. 423; Adams v. Sherrill, 14 How. 297; Chappell v. Bissell, 10 How. 275; Griswold v. Laverty, 3 Duer, 690; Andrews v. Astor B'k, 2 Duer, 629; Keteltas v. Meyers, 19 N. Y. 231; Price v. McClave, 6 Duer, 544; 5 id. 670; Alden v. Bloomingdale, 1 Duer, 601; Lord v. Cheesbrough, 4 Sand. 696; Marshall v. Rockwood, 12 How. 452; Bk of Geneva v. Gulick, 8 How. 51; Cottrell v. Conklin, 4 Duer, 52).

§ 163. Private statutes, how to be pleaded.

In pleading a private statute, or a right derived therefrom, it shall be sufficient to refer to such statute, by its title and the day of its passage, and the court shall thereupon take judicial notice thereof.

a. Where the plaintiff relies to maintain his action on the statute laws of another State, he must aver those laws in his pleadings in the same manner as other facts are required to be averred; and a general averment, that by the laws of that other State such and such a conclusion results, as, for example, that by the laws of that other State certain before-mentioned trusts are valid, is not permissible (Throop v. Hatch, 3 Abb. 25; see Phinney v. Phinney, 17 How. 197; Ford v. Babcock, 2 Sand. 523; Cole v. Jessup, 10 How. 524).

b. It is sufficient in a pleading to aver generally that a contract sought to be enforced, is in violation of some municipal ordinance or enactment, when such ordinance or enactment is founded upon a statute. It is not necessary to plead the statute specially (Beman v. Tugnot, 5 Sand. 153; see Bretz v. Mayor of N. Y. 4 Abb. N. S. 258; 34 How. 130; ante, p. 192, d.)

§ 164. Libel and slander, how stated in complaint.

In an action for libel or slander, it shall not be necessary to state in the complaint any extrinsic facts, for the purpose of showing the application to the plaintiff of the defamatory matter out of which the cause of action arose; but it shall be sufficient to state generally, that the same was published or spoken concerning the plaintiff; and if such allegation be controverted, the plaintiff shall be bound to establish, on trial, that it was so published or spoken.

c. See in note to § 142, ante.

§ 165. (Am'd 1849.) Answer in such cases.

In the actions mentioned in the last section, the defendant may, in his answer, allege both the truth of the matter charged as defamatory, and any mitigating circumstances, to reduce the amount of damages; and whether he prove the justification or not, he may give in evidence the mitigating circumstances.