tion 129, the plaintiff cannot take judgment pursuant to the first subdivision of this section, and if he do, the defendant may object to the regularity of the judgment. Ib.

Where in a foreclosure action, the summons stated that judgment would be taken for a specific sum, but the complaint prayed only a sale and payment of the proceeds, the motion for judgment was denied, without prejudice to a motion to amend the summons. Wyant v. Reeves, 1 Code Rep., 49.

And where in an action to recover for goods sold and work done, and claim of a judgment for a certain amount, the summons stated that the plaintiff would apply to the court for the relief demanded in the complaint, was in fact in the form prescribed by subdivision 2 of section 129, the defendant failed to answer, and on the plaintiff's applying for judgment; his application was denied on the ground that his summons was in the wrong form. Diblee v. Mason, 1 Code Rep, 37.

In an action for an assault, &c., where defendant omits to answer, there is nothing in the Code to require the damages to be assessed by a jury at the circuit, and it is more convenient, and more in accordance with the former practice to have the damages assessed by a sheriff's jury. It is in the power and discretion of the justice at special term, to whom application is made for judgment, to order the damages to be assessed by a sheriff's jury. Richards v. Swetzer, 3 Pr. R., 413, 414. 1 Code Rep, 117. Stanley v. Anderson, 1 Code Rep., 52. In the latter case the court approved of the following form of judgment.

Title of the cause.

At a special term of the supreme court held in the county of Albany, on the 7th day of October, 1848, before Mr. Justice Hand.

The summons with a copy of the complaint in this action, having been personally served on the defendant on the 21st day of August, 1848, and no answer or demurrer thereto having been served on the attorneys for the plaintiff, the plaintiff, by John Cole, his counsel, applies for the relief demanded in the complaint, being for the payment of money only, and this term of the court being the time and place specified in the summons for that purpose, thereupon it is adjudged that the plaintiff do recover against the defendant his damages by him sustained by occasion of the premises in the said complaint set forth; but because it is unknown what amount of damages the plaintiff hath sustained, the plaintiff hereupon requiring that the damages be assessed by a jury, it is ordered that the sheriff of the county of Saratoga, by the oaths of twelve good and lawful men of his county, assess such damages; and that said sheriff return to this court, at the office of the Clerk of Saratoga county, the inquisition he shall thereupon take, under his hand, together with this order, and thereupon ordered judgment for the amount of damages so assessed, with $12 costs and disbursements to be verified.

In a suit for partition commenced by summons and complaint under the code, if any of the defendants do not answer within the time prescribed, it is unnecessary to euter an order for their default. Plaintiff is entitled to the relief demanded in his complaint. Watson v. Brigham, 1 Code Rep., 67.

Where the relief demanded by the complaint was a judgment for the return of personal property or its value, and no answer was put in, it was held that the plaintiff might elect which judgment he would take, but that he could not be allowed to take judgment in the alternative. In that class of cases the judgment must be final and certain. Commercial Bank v. White, 3 Pr. R., 292, 1 Code Rep., 68.

Where after judgment entered for default of an answer the plaintiff requires a reference, on the ground that the taking of an account is necessary, he will be required to do more than state generally that a reference is necessary; he must state circumstances from which the court may judge of the necessity for a reference; thus where after judgment for want of a plea the plaintiff on a general affidavit that the inquiry involved the examination of a long account asked for a reference to ascertain the amount of damages, Edmonds J., said: "Cases of this kind have occurred where the damages could very conveniently have been tried by a sheriff's jury, but where the plaintiff on an affidavit like this has obtained an order of reference, and largely augmented the costs. To guard against such an abuse I shall in future exact from the plaintiff, a sworn copy of the account on which the action is brought, so that the court may judge for itself as to the necessity of a reference. Brown v. Miller, 1 Barb. S. C. R. 24.

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 judg ment, 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. Callagan v. Hallett, Caines, 104.

$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.

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 judgment under this section, and the motion was denied.

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.

Where a complaint by an indorser 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 "owner" 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.

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.

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 an-swer as frivolous, it must appear that the answer is a "sham pleading," which does not necessarily follow from its being merely frivolous.

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 stricken out 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. There is no time limited, within which the motion is to be made. The motion may be made on the copy pleading served, and no affidavit is necessary. 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. Darrow v. Miller, 3 Code Rep., 241.

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 on another ground, 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 by this section is not an order, but a judgment. Ib. 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., 30-32. 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. And see, now, the amendment to section 269, and note to sections 152 and 246.

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.

SECTION 248.

CHAPTER II.

Issues and the mode of trial.

The different kinds of issues.

249. Issue of law.

250. Issue of fact.

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

252. Issues, how tried.

253. Issue of fact to be tried by jury, unless waived or reference ordered. 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.

$250. [205.] Issue of fact. An issue of fact arises,

1. Upon a material allegation in the complaint controverted by the answer; or,

2. Upon new matter in the answer controverted by the reply; or,

3. Upon new matter in the reply, except an issue of law is joined thereon.

§ 251. [206.] On issues of both law and fact, the issue of law to be first tried. Issues both of law and of fact may arise. upon different parts of the pleadings in the same action. In such cases, the issues of law must be first tried unless the court otherwise direct.

Where there were issues of law and fact in a case, and both parties noticed the cause for trial on the issue of fact, and the issue of fact was tried without objection before the issues of law. It was afterwards contended that the trial was irregular, because the issue of law was not first tried, but it was held in the superior court, all the judges concurring, that both parties having noticed the issue of fact for trial, had consented to its being first tried, and it must be deemed to have been first tried by order of the court. Warner v. Wigers, 2 Sand., S. C. R., 635.

In the case last cited it was announced that the future practice of the superior