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Foreclosure, see Mortgages, $ 459.

III. PLEA OR ANSWER, CROSS-COMFor injuries to passenger, see Carriers, $ 314.

PLAINT, AND AFFIDAVIT For injuries to servant, see Master and Serv

OF DEFENSE. ant, 8258. For wrongful discharge of servant, see Master

(A) DEFENSES IN GENERAL. and Servant, $ 39.

8 80. Where matter pleaded is not pleaded Indictment or criminal information or com as a partial defense, it must be assumed to be

plaint, see Indictment and Information. pleaded as a complete defense, and as such testOn insurance policy, see Insurance, 8 645. ed as to its sufficiency.- New York Central Iron To set aside written contract, see Reformation Works Co. v. Brennan (Sup.) 457. of Instruments, $ 36.

$ 95. The second defense in an answer held Review of decisions and pleading in appellate to sufficiently identify the subject-matter, by courts.

reference to the first defense, with that involved Review of discretionary rulings on motions re- the defense of an election of remedies against

in a former proceeding by plaintiff, so as to state lating to, see Appeal, § 960. Review of rulings on as dependent on presenta

a demurrer.-Davenport v. Walker (Sup.) 411. tion in lower court of grounds of review, see

$ 95. Each defense must be complete in itAppeal, 8 197.

self, though material facts previously stated

may be incorporated in a defense by reference.I. FORM AND ALLEGATIONS IN

Davenport v. Walker (Sup.) 411.
GENERAL

(B) DILATORY PLEAS AND MATTER IN Specific character of allegation in summary pro

ABATEMENT. ceedings to recover demised premises, see 106. A defense to a counterclaim in excess Landlord and Tenant, $ 303.

of the demand sued on, because of the pendency

of another action for the cause of action set & 11. Where a complaint sets forth matters forth in the counterclaim, held insufficient on of evidence, it ceases to conform to the require- demurrer.-O'Leary v. Tooker (Sup.) 664. ments of the Code that it shall contain a concise statement of the facts.- Welcke v. Trage

(C) TRAVERSES OR DENIALS AND ser (Sup.) 166.

ADMISSIONS. 8 11. Statement of an agent should be pleaded as statement of principal.-Moffett v. Jaffe sufficient to form a belief as to a personal trans

$ 121. A denial of knowledge or information (Sup.) 402.

action is bad in form.-Bloch v. Bloch (Sup.) $ 11. Absence from complaint of an allega

339. tion of an essential fact held not supplied by al § 121. An answer held sufficient as a denial legations of matter of evidence.-Moffett v. Jaffe of knowledge or information, within the require(Sup.) 402.

ments of Code Civ. Proc. $ 500.-Hinds, Noble § 11. It was unnecessary to allege that fraud- & Eldredge v. Bonner (Sup.) 663. ulent representations were made through an $ 121. An averment that defendant has not agent, it being sufficient to allege that they were knowledge sufficient to form a belief as to the made by defendant, so that it was immaterial, allegations of the complaint, and therefore dewhether other allegations sufficiently alleged pies them, held insufficient as a denial that dethat she made them through her agent.-Harlow fendant had no knowledge or information sufv. Haines (Sup.) 449.

ficient to form a belief as to the matters alleged. ly against the pleader as to matters of form.- knowledge sufficient to form a belief as to the $ 34. A pleading is no longer construed strict- --City of New York v. Halsey (Sup.) 947.

§ 121. An averment that defendant has not Davenport v. Walker (Sup.) 411.

allegations of the complaint, and therefore de§ 34. Under Code Civ. Proc. $ 519, held, that nies the same, held insufficient as a denial upon a complaint on motion to dismiss must be con- information and belief.-City of New York v. strued, as to matters of form, in favor of the Halsey (Sup.) 947. pleading.--Catterson v. Brooklyn Heights R. Co. (Sup.) 760.

$ 121. That the allegations of the complaint

concern matters of public record will not neces$36. Where a tenant's answer, in an action sarily always prevent defendant in every case by a landlord, admitted the lease, he could not from putting such allegations in issue by a deinsist on proof thereof.-- William Knabe & Co. nial of any knowledge or information thereof Mfg. Co. v. Dinwiddie (Sup.) 716.

sufficient to form a belief, as authorized by

Code Civ. Proc. $ 500.--City of New York v. II. DECLARATION, COMPLAINT, PE- Halsey (Sup.) 947. TITION, OR STATEMENT.

§ 121. Under Code Civ. Proc. $ 500, subd. $ 52. Under Code Civ. Proc. $ 483, held that, 1, denials in an answer of any information sufwhere tivo causes of action were united in the ficient to form a belief as to the allegations of complaint, plaintiff on motion should be requir- Frank A. Wahlig Co. (City Ct.) 578.

the complaint held insufficient.-Genninger v. ed to state separately and number the facts constituting each cause.-Lyon v. Friedlander (City $ 127. An answer in an action for possesCt.) 569.

sion held to be an admission that defendant at For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

the time of action brought was in possession there was nothing to justify the court in ex. of a disputed strip holding in hostility to plain-ercising its discretion in allowing him to serve tiff.-Kraus v. Birnbaum (Sup.) 916.

another amended complaint.-Mitchell y. Dun

more Realty Co. (Sup.) 812. (D) MATTER IN AVOIDANCE,

$ 237. An amendment to a complaint after $ 132. Under Code Civ. Proc. g 500, a de

the close of evidence to conform to the proof fense of waiver of condition in action on con

held properly allowed.-Leslie v. Grover (Sup.) tract held demurrable.- Ward v. Brady (Sup.)

868. 456.

§ 248. An amendment of the complaint held

not to substitute a new cause of action.-ManIV. REPLICATION OR REPLY AND hattan Rolling Mill v. Dellon (City Ct.) 583.

SUBSEQUENT PLEADINGS. $ 167. Allegations in answer, though they

IX. BILL OF PARTICULARS AND might constitute a counterclaim, held required

COPY OF ACCOUNT. to be treated as a defense only, being so nom- Review of discretion of court as to granting or inated, as against motion for judgment for want of reply.-Ortiz v. Cornell (Sup.) 89.

refusing bill of particulars, see Appeal, $ 960. $ 176. Under Code Civ. Proc. $ 514, a reply

§ 313. A bill of particulars is an extension held insufficient. Citizens' Permanent' Savings of a pleading.–Chittenden v. San Domingo Im& Loan Ass'n v. Rampe (Co. Ct.) 597.

provement Co. of New York (Sup.) 8:29. § 182. Failure to demur or reply to a coun § 317. Where the complaint states the cause terclaim admits the allegations thereof, but of action with sufficient particularity, a bill of does not admit that such counterclaim was particulars will not be ordered.-Rosenthal v. properly interposed.-Van V. Madden (Sup.) Barnett (Sup.) 239. 1115.

$ 317. Defendant not entitled to a bill of V. DEMURRER OR EXCEPTION.

particulars, before issue is joined, where sub

stantially all he claims is that he does not know § 198. A joint demurrer must be overruled whether plaintiff's claim is correct or not.-10if the complaint states a cause of action against ternational Import & Export Co. y. Di Monda one of the parties jointly demurring.-Holmes (City Ct.) 590. v. Seaboard Portland Cement Co. (Sup.) 524.

§ 318. A bill of particulars of the defense § 214. A demurrer to the complaint to re- of payment will not be ordered.-Heilperin F. strain the use of a building as a hospital for Levy (Sup.) 676. insane persons does not admit that the things will actually occur as alleged which plaintiff will not be ordered, when the answer consists

8 318. A bill of particulars as to defense apprehends in the operation of such hospital. Simply of denials of plaintiff's allegations of -Ileaton v. Packer (Sup.) 46.

ownership of the bond and mortgage sued on.$ 214. On demurrer, a complaint must be Heilperin v. Levy (Sup.) 676. construed most favorably to the plaintiff, and its allegations taken as true.- William Bernard

$ 318. A defendant is not required to furnish v. Fromme (Sup.) 807.

a bill of particulars of payments made, under § 217. Where upon demurrer to the answer Kunitzer (Sup.) 677.

the defense of payment.–Jacob Bros, Co. v. the sufficiency of the complaint is attacked in argument, its sufficiency will be first determined. § 320. A bill of particulars to enable defend-Davenport v. Walker (Sup.) 411.

ant to answer should be denied, where the affi$ 217. On demurrer to the answer for in-davit of his attorney states that defendant bas sufficiency, defendant can only attack the suffi- fully stated his case and that affiant bas adciency of the complaint to show that it does not

vised him that he has a good defense on the state a cause of action, and he cannot raise the merits.- International Import & Export Co. v. question of a misjoinder of parties defendant.

Di Monda (City Ct.) 590. New York Central Iron Works Co. v. Brennan $ 323. Motion for bill of particulars, made (Sup.) 457.

after framing of issues and direction of trial $ 218. On demurrer, a complaint must be on a certain day, held too late.-Stein v. Stein construed most favorably to the plaintiff, and (Sup.) 93. its allegations taken as true.-William Bernard

§ 323. Under the changed circumstances, v. Fromme (Sup.) 807.

whereby plaintiff would not be delayed. keld,

defendant's motion for bill of particulars should VI. AMENDED AND SUPPLEMENTAL be granted, notwithstanding refusal of a prior PLEADINGS AND REPLEADER. one on the ground of laches.-Lerittas v. Hart

(Sup.) 636. Amendment of pleading affecting limitations, see Limitation of Actions, $ 127.

§ 329. Under Code Civ. Proc. $ 531, a plainIn action for rent, see Landlord and Tenant, tiff is in default if he fails to serve a bill after $ 230.

the order therefor is made, though he served

such bill after motion, but before the order, $ 236. Where plaintiff has served three com- which was returned by, defendant.-Hosner v. plaints held not to state a cause of action, held, Keahon (Sup.) 720.

XI. MOTIONS.

which may be presented by the answer.-Welcke Striking out frivolous answer in summary pro

V. Trageser (Sup.) 161. ceedings to recover demised premises, see

§ 365. A motion to strike out matter from Landlord and Tenant, $ 305.

a pleading as irrelevant is not in the nature of

a demurrer, and the sufficiency of the pleading $ 346. A demurrer to the complaint in an ac is not presented for determination.-Welcke v. tion on a note held not frivolous.--Hood v. Hoff. Trageser (Sup.) 166. mann (Sup.) 892.

$367. The remedy for an indefinite denial $ 350. In action on guaranty, rendition of is by motion to make it more definite and cerjudgment for defendant on the merits on motion tain.-Hinds, Noble & Eldredge v. Bonner for judgment on the pleadings, without striking (Sup.) 663. out of plaintiff's proofs, held error.-Smith v. Prager (Sup.) 713.

8 367. A motion, in the alternative, to make

a pleading more definite and certain or for a § 364. Though the relevancy of certain alle bill of particulars, is never regarded favorably gations in a complaint to set aside a deed did by the court.-Jacob Bros. Co. V. Kunitzer not appear, held, that they should not be strick, (Šup.) 677. en out, as their relevancy might be developed by evidence.-Welcke v. Trageser (Sup.) 161.

8 367. A complaint for money loaned held

subject to a motion to make more definite, where 8 364. Certain allegations, in a complaint to alleged agreement to repay is not annexed.cancel a deed, as to the control of the proper. Pringle v. Mulholland (City Ct.) 572. ty after making the deed, held material and not to be stricken out.-Welcke v. Trageser (Sup.) XII. ISSUES, PROOF, AND VARIANCE. 161.

$ 376. Where, in replevin for goods, the an§ 364. Allegations in a complaint which swer admitted the value of the goods to be a merely set forth evidence may be stricken out certain sum, there was no issue as to their valon motion.- Welcke v. Trageser (Sup.) 161.

ue, so as to require evidence on that question.8.364. , In a complaint to set aside a deed by John Hofman Co. v. Murphy (Sup.) 506. plaintiffs' mother to a corporation on the ground of fraud and undue influence by plaintiff's

XIII. DEFECTS AND OBJECTIONS, brothers, allegations as to the action of a leg

WAIVER, AND AIDER BY VERatee under the mother's will held to be strick

DICT OR JUDGMENT. en out on motion; the legatee not being a party to the action.-Welcke v. Trageser (Sup.) ative to waiver by failure to plead, refers only

§ 411. As Code Civ. Proc. $$ 498, 499, rel161.

to defects in the complaint and waiver by de8 364. In an action to cancel a deed on the fendant, an objection to a counterclaim is not ground of fraud and undue influence, allegations waived by failure to demur or specifically obof facts in anticipation of the defense of estop-ject thereto by answer.-Van v. Madden (Sup.). pel are not material to plaintiffs' cause of ac- 1115. tion, and may be stricken out on motion.Welcke v. Trageser (Sup.) 161.

PLEDGES. § 364. Certain allegations of a complaint to See Pawnbrokers. set aside a deed on the ground of fraud, duress, and undue influence held irrelevant, and to be § 44. Ordinarily payment of the indebtedness stricken out.-Welcke v. Trageser (Sup.) 161. releases collateral security.-Jackson v. Erkins 8 364. In an action by stockholders for an

(Sup.) 385. accounting by a corporation and individual di $ 48. Complaint in an action by a pledgor rectors, an allegation as to the total issue of against the pawnbroker held to state a cause of corporate stock and the amount thereof owned action for conversion.-Buchanan y. Provident by the individual defendants held not to be Loan Society of New York (Sup.) 653. stricken out as irrelevant.-Welcke v. Trageser (Sup.) 166.

POLICE. § 364. Certain allegations in the complaint for an accounting by à corporation and its di- Restraining acts of, see Injunction, 88 22, 154. rectors held irrelevant, and that they should be stricken.-Welcke v. Trageser (Sup.) 166.

POLICE POWER. § 364. Where material facts are charged in the same sentence with allegations of evidence, of municipality, see Municipal Corporations, and they cannot be separated, the entire alle 88 603, 621. gation should be stricken out, with leave to amend by stating the facts only.--Welcke v.

POLICY. Trageser (Sup.) 166.

Of insurance, see Insurance. 8 365. The question presented by a motion to strike out allegations of the complaint is whether the allegations are relevant to the

POLITICAL RIGHTS. cause of action attempted to be set forth, and not whether they may be relevant to an issue. See Constitutional Law, $ 89.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (3) NUMBER

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POSSESSION.

PRESCRIPTION.
See Adverse Possession.

Acquisition of rights, see Adverse Possession, #
Of demised premises, see Landlord and Tenant,

7, 13.
88 134, 295–305.

PRESENTMENT.
POWERS.

Of bill or note, see Bills and Notes, $ 422.

Of claims against estate of decedent, see Ex-
Creation by will, see Wills, $ 684.

ecutors and Administrators, $8 221, 250.
Of attorney, see Principal and Agent.
PRACTICE.

PRESUMPTIONS.
Procedure of particular courts, see Courts.

In favor of constitutionality of statute, see Con-
Prosecution of actions in general, see Actions,

stitutional Law, $ 48.
f 69.

Of grant, see Adverse Possession, $ 104.

On appeal, see Appeal, 88 927–931.
In particular civil actions or proceedings.
See Account, $ 17; Divorce, $ 85; Ejectment;

Habeas Corpus, Š 85 ; Mandamus, $8 154–187; PRINCIPAL AND AGENT.

Replevin.
Accounting by executor or administrator, see

Admissions by agent, see Evidence, $8 243-248.
Executors and Administrators, 88 506-513.

Agency in particular relations, offices, or 00
Condemnation proceedings, see Eminent Do-

cupations.
main, 88 174–205.

See Attorney and Client; Brokers.
Particular proceedings in actions. Corporate agents, see Corporations, &$ 283-353,
See Affidavits; Appearance;, Costs; Damages,

428, 507.
$185; Depositions ; Evidence; 'Judgment: Municipal agents, see Municipal Corporations,
Jury; Limitation of Actions ; Parties; Plead. 88 216-220, 747.
ing; Process; Reference; Stipulations; Trial;
Venue

I. THE RELATION,
Nonsuit, see Trial, $$ 159, 164.

(A) CREATION AND EXISTENCE.
Particular remedies in or incident to actions.

§ 23. In an action for price of beer sold to
See Arrest, 88 22–35; Attachment; Discovery; | defendant, evidence by defendant held insuffi-
Injunction; Ne Exeat; Receivers.

cient to establish the agency of the one to whom
Proccdure . in criminal prosecutions.

defendant paid the price.-Howard & Childs

Co. v. Conaty (Sup.) 614.
See Criminal Law.
Procedure in exercise of special or limited juris. III. RIGHTS AND LIABILITIES AS TO
diction.

THIRD PERSONS.
In bankruptcy, see Bankruptcy, $ 20.

(A) POWERS OF AGENT.
Procedure on review.
See Appeal; Justices of the Peace, g 189; New

$ 92. The maxim “qui facit per alium, facit

per se," applies only to an act authorized in
Trial.

fact and not by implication.-Wallace v. Jobo
PREFERENCES.

A. Casey Co. (Sup.) 394.

s 101. A superintendent of trucking held
Effect of proceedings in bankruptcy, see Bank- not to have implied authority to offer a reward
ruptcy, g 198.

for the recovery of his employer's horse and

wagon.-Rubenstein v. Frost (Sup.) 681.
PREJUDICE.

$123. Principals held unable to defeat lia-
Ground for reversal in civil actions, see Appeal, bility for an agent's acts by showing lack of
88 1050–1062

apparent authority in him.-Kilmer V. Hut-

ton (Sup.) 127.
PRELIMINARY EXAMINATION. 8 131. The rule respondeat superior is ap-

plied to acts done without authority, and eren
On criminal charge, see Criminal Law, 216. in disobedience of positive orders.-Wallace y.

John A. Casey Co. (Sup.) 394.
PRELIMINARY INJUNCTION.

(C) UNAUTHORIZED AND WRONGFIL
See Injunction, 154.

ACTS.

$ 155. A buyer of goods can recover from the
PREMIUMS.

agent of a disclosed princinal for breach of an

unauthorized warranty.—Luckes V. Meserole
See Insurance, 8 137.

(Sup.) 350.

PRINCIPAL AND SURETY.

PROCEDURE. See Bonds; Guaranty; Indemnity.

See cross-references under Practice. Liabilities of sureties on bonds for performance

of duties of trust or office, see Executors and Administrators, $ 535.

PROCESS. Liabilities of sureties on bonds in legal proceeds See Arrest. ings, see Attachment, 88 335–351.

Effect of appearance, see Appearance. II. NATURE AND EXTENT OF LIA In actions against particular classes of persons. BILITY OF SURETY.

See Corporations, 8 507. $ 66. Sureties upon a bond to a school, conditioned upon the payment by a prospective stu

In particular actions or proceedings. dent of any sums charged for the rent of any

See Injunction; Mandamus; Replevin. room which might be assigned him, held liable In criminal prosecutions, see Criminal Law, 8 for the rent of a room which a student contract

216. ed for for the succeeding school year, though he 1. NATURE, ISSUANCE, REQUISITES, did not return to occupy it.-President and Fel

AND VALIDITY. lows of Harvard College v. Kempner (Sup.) 437.

8 36. Under Code Civ. I roc. $ 723, held, a 83. Where defendants bound themselves to pay to a university the rent of any room, etc., days, instead of six days, would be amended in

summons by mistake made returnable in two which might be assigned to an infant student, furtherance of justice.-Spruban v. Brown (City they cannot raise the question of infancy to Ct.) 569. escape liability for any contract the infant made within the scope of the obligation of the bond.

II. SERVICE. President and Fellows of Harvard College v. (C) PUBLICATION OR OTHER NOTICE. Kempner (Sup.) 437.

$ 96. Affidavits for an order for service of III. DISCHARGE OF SURETY. summons by publication, under Code Civ. Proc.

$ 440, held not sufficient.-Murphy v. Frank$ 129. A surety held estopped from asserting lin Sav. Bark in City of New York (Sup.) that excessive payments to the principal, a 228. building contractor, was a violation of the contract, which discharged the surety.-Hellman v.

$ 96. An affidavit that certain defendants reFarrelly (Sup.) 809.

sided in Ohio and California, and that it would be impossible to make personal service upon

them held sufficient under Code Civ. Proc. 8 PRIORITIES.

439, to sustain the order for service and the

judgment.--Stanton v. Eastman (Sup.) 852. Between liens and right, of dower, see Dower, $ 27.

$ 98. If the affidavit for service by publica

tion on nonresidents tends to show compliance PRISONS.

with the statute and presents the question of

nonresidence for determination, the order made Habeas corpus to obtain release from, see Ha- thereon will not be subject to collateral attack beas Corpus, 8 17.

after judgment.--Stanton V. Eastman (Sup.)

852. PRIVATE NUISANCES.

PROHIBITION. See Nuisance, 88 3–37.

Of traffic in intoxicating liquors, see Intoxicat

ing Liquors. PRIVATE ROADS. Rights of way, see Easements.

PROMISE OF MARRIAGE.

See Breach of Marriage Promise.
PRIVILEGE
Effect on limitation, see Limitation of Actions,

PROMISSORY NOTES.
8 72.
Of witness as to testimony, see Witnesses, 8 304. See Bills and Notes.

see

PRIVILEGED COMMUNICATIONS.

PROPERTY. Defamatory communications, Libel and Constitutional guaranties of rights of property, Slander, § 42.

see Constitutional Law, § 290. Disclosure by witness, see Witnesses, $ 209. Estates, see Estates. PROBATE.

Of particular cla8808 of persone.

Camp meeting associations, see Religious SoOf will, see Wills, $8 226-431.

cieties, $ 20.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (8) NUMNER

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