That it contains a set-off, or equitable defence, to the set-off contained in the answer in this action. That it is inconsistent with and a departure from the plaintiff's complaint.1 this doctrine is approved or not. In the opinion of MARVIN, J., in the same case, it is directly disapproved (ibid., p. 90), who says: "As no grounds of demurrer were stated, showing wherein the reply was insufficient, the plaintiff had the right to require the demurrer to be made more definite; or, perhaps, he could have moved to strike it out upon the ground that it did not conform to the requirements of the Code." Whether absolutely required or not, it is certainly best, in all cases, to point out briefly in the demurrer the grounds of the alleged insufficiency of the reply. A reply to a counter-claim, by the Code (sec. 153), may set up 66 any new matter, not inconsistent with the complaint, constituting a defence to such new matter in the answer." It has been a question whether a reply which is inconsistent with, that is, which is a departure from, the complaint, may be reached by demurrer. The subject is considered in the Treatise on Pleading, (pp. 635-637), and the conclusion there arrived at is that such a reply may be either demurred to as insufficient, or be reached by a motion to strike out. Since then the same subject has been considered in the Court of Appeals (White v. Joy, 3 Kernan, 83), and the opinion expressed by MARVIN, J., that the Code does not authorize a demurrer to a reply alleging "new matter inconsistent with the complaint." This opinion, however, can scarcely be regarded as an adjudication of the court upon the point in question, inasmuch as the prevailing opinion, in which the rest of the court concurred, was delivered by DENIO, J., who considered the reply in the case as supporting the complaint, and not a departure, and overruled the demurrer on that ground. The actual decision of the court, therefore, would seem to imply that the demurrer was considered as raising the question, and was overruled, not because improperly pleaded, but because the matter demurred to was in itself sufficient. The Special Term decision of Stewart v. Travis and others (10 How., 148) holds that a defendant's remedy, in case of a reply of setoff to an answer of set-off, is by demurrer, and not by motion to strike out. INDEX. ABATEMENT: answer of another action pending for the same cause, non-joinder of a party defendant,. non-joinder of a party plaintiff, that plaintiff is a married woman,. .... .... .... ........ .... .... .... .... .... .... .... .... .... cannot be united with matter in bar in same answer,... ACCOUNT: .... .... complaints containing prayer for accounting in injunction cases, in trust cases and on behalf of creditors,.. 90, 108 to ascertain amount of lien in action to determine lien and sell .... same in action for delivery of goods, 302 .... 305 .... 318 335 322 ....... complaint for, against the executor of a trustee in relation to sale for account of rents and profits in an action to compel heirs-at- ........ (See RESPECTIVE TITLES, GOODS SOLD, &c., &c.) for several different kinds of money demands, accruing in differ- ACCIDENT: ....... complaint in case of moneys accidentally distributed, .... ... 53 to compel delivery of a deed, prevented by accidental death of to compel execution of trust power not executed by accident,.. 62 ADMISSION: in an answer unnecessary,... 29 29 complaint by, for breach of contract to convey lands,.......... 404 ALTERNATIVE RELIEF: prayer for, in complaint for specific performance, 73 same, in complaint against vendor and subsequent purchaser,... 74 192 same, in complaint against insurance company, on contract to 328 complaint may be framed to ask judgment in ejectment or for 529 ...... ANSWER: to bill in equity, ... to complaint under the Code, in paragraphs,. (See DENIALS-GENERAL AND SPECIFIC.) in abatement of the action, defensive answers, (See ABATEMENT.) (See VARIOUS SUBJECTS AND TITLES). 29 41 ... 530,-547 547,-550 550,- what separate answers may be joined, and requisites of,....... answer of title in justices' court, .... ... .... in cases for the construction of wills, (See COUNTER-CLAIM.) supplemental answer; demand merged by a judgment rendered complaint, by assignee of claim, for non-delivery of goods,..... 363 365 365 complaint, by assignee, of demand on fire insurance policy, 450 .... ASSIGNEE (Continued): by assignee in trust, for benefit of creditors, on fire insurance for bills of goods assigned to plaintiff,. ASSIGNMENT (See TRUSTS AND ASSIGNMENTS). ASSAULT AND BATTERY .... ...... (See TRESPASS TO PERSONS AND PROPERTY). AUDITA QUERELA, PAGE. 398 434, 435 complaint in nature of, praying the discharge of a paid judg- by bank, in the name of its president, on bill of exchange, may sue and be sued by corporate name or in name of its presi- ....... 345 345 309 369 370 370 369, 370, 373 against a bank, by the name of its president, for refusal to pay BANKRUPT ACT: answer, discharge under, in action on judgment,. .. complaint against first and third indorser of note, 415 361 by copartnership firm, against another firm, on a draft, accepted 362 by bank, against drawer, acceptor and indorser of bill,. in what cases representatives of deceased maker may be joined 417-419 complaint against two of three makers of a joint and several 418 answer, by indorser, that note was indorsed for maker's accom- that maker or indorser was agent, without authority,. 576 1 Since the note on page 358 was put to press. the case of Prindle v. Caruthers CARRIER: PAGE. ...... complaint, for breach of contract of common carrier, for value of (See RAILROAD COMPANY.) ..... 519, 523 answer, in action by, denial, with defence that loss was caused 554 same, with defence of special contract, by which plaintiff as- 557 same, separate answers to several causes of action, judgment re- 559 CHECK (See BILLS, BONDS And Notes). CLAIM AND DELIVERY OF PERSONAL PROPERTY: complaint by sheriff, against auctioneer, for delivery of goods, to recover possession of personal property, with damages, 305 ...... 493 603 493-494 demand and refusal, when must be alleged, and complaint, what in what cases equity will interfere to remove cloud upon title,' 121–124 COMMON COUNTS (See MONEY PAID, &C., LABOR AND SERVices, COMMITTEE (See RECEIVER, COMMITTEE, &c). COMMISSIONERS OF HIGHWAYS ( See PUBLIC Officers). COMPLAINT: bill of, in equity,... must contain only a single statement to a single cause of ac- 1 18, 20 48 47-354 354-530 CONTRACT (See BILLS, BONDS AND NOTES; WARRANTY, &c.): complaint for breach of, to convey lands by agent for the benefit on written contract and guaranty against contractors and guaran- for breach of contract for sale of railroad stock,. ...... ... 406 420 444 1 Since the note commencing on page 121 was printed, the Court of Appeals has |