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PLEA OR ANSWER, CROSS-COM-
PLAINT, AND AFFIDAVIT
OF DEFENSE.

(A) DEFENSES IN GENERAL.

§ 80. Where matter pleaded is not pleaded as a partial defense, it must be assumed to be pleaded as a complete defense, and as such tested as to its sufficiency.-New York Central Iron Works Co. v. Brennan (Sup.) 457.

$95. The second defense in an answer held

Review of decisions and pleading in appellate to sufficiently identify the subject-matter, by

courts.

Review of discretionary rulings on motions relating to, see Appeal, § 960. Review of rulings on as dependent on presentation in lower court of grounds of review, see Appeal, 197.

I. FORM AND ALLEGATIONS IN

GENERAL.

Specific character of allegation in summary proceedings to recover demised premises, see Landlord and Tenant, § 303.

§ 11. Where a complaint sets forth matters of evidence, it ceases to conform to the requirements of the Code that it shall contain a concise statement of the facts.-Welcke v. Trageser (Sup.) 166.

§ 11. Statement of an agent should be pleaded as statement of principal.-Moffett v. Jaffe (Sup.) 402.

§ 11. Absence from complaint of an allegation of an essential fact held not supplied by allegations of matter of evidence.-Moffett v. Jaffe (Sup.) 402.

§ 11. It was unnecessary to allege that fraudulent representations were made through an agent, it being sufficient to allege that they were made by defendant, so that it was immaterial, whether other allegations sufficiently alleged that she made them through her agent.-Harlow v. Haines (Sup.) 449.

§ 34. A pleading is no longer construed strictly against the pleader as to matters of form.Davenport v. Walker (Sup.) 411.

§ 34. Under Code Civ. Proc. § 519, held, that a complaint on motion to dismiss must be construed, as to matters of form, in favor of the pleading. Catterson v. Brooklyn Heights R. Co. (Sup.) 760.

§ 36. Where a tenant's answer, in an action by a landlord, admitted the lease, he could not insist on proof thereof.-William Knabe & Co. Mfg. Co. v. Dinwiddie (Sup.) 716.

reference to the first defense, with that involved in a former proceeding by plaintiff, so as to state the defense of an election of remedies against a demurrer.-Davenport v. Walker (Sup.) 411. § 95. Each defense must be complete in itself, though material facts previously stated may be incorporated in a defense by reference.Davenport v. Walker (Sup.) 411.

(B) DILATORY PLEAS AND MATTER IN ABATEMENT.

106. A defense to a counterclaim in excess of the demand sued on, because of the pendency of another action for the cause of action set forth in the counterclaim, held insufficient on demurrer.-O'Leary v. Tooker (Sup.) 664.

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§ 121. A denial of knowledge or information sufficient to form a belief as to a personal transaction is bad in form.-Bloch v. Bloch (Sup.) 339.

§ 121. An answer held sufficient as a denial of knowledge or information, within the requirements of Code Civ. Proc. § 500.-Hinds, Noble & Eldredge v. Bonner (Sup.) 663.

§ 121. An averment that defendant has not knowledge sufficient to form a belief as to the allegations of the complaint, and therefore denies them, held insufficient as a denial that defendant had no knowledge or information sufficient to form a belief as to the matters alleged. -City of New York v. Halsey (Sup.) 947.

knowledge sufficient to form a belief as to the § 121. An averment that defendant has not allegations of the complaint, and therefore denies the same, held insufficient as a denial upon information and belief.-City of New York v. Halsey (Sup.) 947.

§ 121. That the allegations of the complaint concern matters of public record will not necessarily always prevent defendant in every case from putting such allegations In issue by a denial of any knowledge or information thereof 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.

§ 52. Under Code Civ. Proc. § 483, held that, complaint, plaintiff on motion should be required to state separately and number the facts constituting each cause.-Lyon v. Friedlander (City Ct.) 569.

where two causes of action were united in the

121. Under Code Civ. Proc. § 500, subd. ficient to form a belief as to the allegations of 1, denials in an answer of any information sufFrank A. Wahlig Co. (City Ct.) 578. the complaint held insufficient.-Genninger v.

§ 127. An answer in an action for possession held to be an admission that defendant at

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

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

(D) MATTER IN AVOIDANCE. § 132. Under Code Civ. Proc. $ 500, a de

fense of waiver of condition in action on contract held demurrable.-Ward v. Brady (Sup.) 456.

IV. REPLICATION OR REPLY AND

SUBSEQUENT PLEADINGS.

§ 167. Allegations in answer, though they might constitute a counterclaim, held required to be treated as a defense only, being so nominated, as against motion for judgment for want of reply.-Ortiz v. Cornell (Sup.) 89.

§ 176. Under Code Civ. Proc. § 514, a reply held insufficient. Citizens' Permanent Savings & Loan Ass'n v. Rampe (Co. Ct.) 597.

§ 182. Failure to demur or reply to a counterclaim admits the allegations thereof, but does not admit that such counterclaim was properly interposed.-Van v. Madden (Sup.) 1115.

V. DEMURRER OR EXCEPTION.

§ 198. A joint demurrer must be overruled if the complaint states a cause of action against one of the parties jointly demurring.-Holmes v. Seaboard Portland Cement Co. (Sup.) 524.

§ 214. A demurrer to the complaint to restrain the use of a building as a hospital for insane persons does not admit that the things will actually occur as alleged which plaintiff apprehends in the operation of such hospital. -Heaton v. Packer (Sup.) 46.

§ 214. On demurrer, a complaint must be construed most favorably to the plaintiff, and its allegations taken as true.-William Bernard v. Fromme (Sup.) 807.

§ 217. Where upon demurrer to the answer the sufficiency of the complaint is attacked in argument, its sufficiency will be first determined. -Davenport v. Walker (Sup.) 411.

$217. On demurrer to the answer for insufficiency, defendant can only attack the sufficiency of the complaint to show that it does not state a cause of action, and he cannot raise the question of a misjoinder of parties defendant.— New York Central Iron Works Co. v. Brennan (Sup.) 457.

§ 218. On demurrer, a complaint must be construed most favorably to the plaintiff, and its allegations taken as true.-William Bernard v. Fromme (Sup.) 807.

VI. AMENDED AND SUPPLEMENTAL PLEADINGS AND REPLEADER. Amendment of pleading affecting limitations, see Limitation of Actions, § 127. In action for rent, see Landlord and Tenant, § 230.

another amended complaint.-Mitchell v. Dunmore Realty Co. (Sup.) 812.

§ 237. An amendment to a complaint after held properly allowed.-Leslie v. Grover (Sup.) the close of evidence to conform to the proof 868.

§ 248. An amendment of the complaint held not to substitute a new cause of action.-Manhattan Rolling Mill v. Dellon (City Ct.) 583.

IX. BILL OF PARTICULARS AND COPY OF ACCOUNT.

Review of discretion of court as to granting or refusing bill of particulars, see Appeal, § 960.

§ 313. A bill of particulars is an extension of a pleading.-Chittenden v. San Domingo Improvement Co. of New York (Sup.) 829.

§ 317. Where the complaint states the cause of action with sufficient particularity, a bill of particulars will not be ordered.—Rosenthal v. Barnett (Sup.) 239.

§ 317. Defendant is not entitled to a bill of particulars, before issue is joined, where substantially all he claims is that he does not know whether plaintiff's claim is correct or not.-International Import & Export Co. v. Di Monda (City Ct.) 590.

§ 318. A bill of particulars of the defense of payment will not be ordered.—Heilperin v. Levy (Sup.) 676.

will not be ordered, when the answer consists § 318. A bill of particulars as to defense simply of denials of plaintiff's allegations of ownership of the bond and mortgage sued on.Heilperin v. Levy (Sup.) 676.

§ 318. A defendant is not required to furnish a bill of particulars of payments made, under Kunitzer (Sup.) 677. the defense of payment.-Jacob Bros. Co. v.

§ 320. A bill of particulars to enable defendant to answer should be denied, where the affidavit of his attorney states that defendant has fully stated his case and that affiant has admerits.-International Import & Export Co. v. vised him that he has a good defense on the Di Monda (City Ct.) 590.

$ 323. Motion for bill of particulars, made after framing of issues and direction of trial on a certain day, held too late.-Stein v. Stein (Sup.) 93.

§ 323. Under the changed circumstances, whereby plaintiff would not be delayed, held, defendant's motion for bill of particulars should be granted, notwithstanding refusal of a prior one on the ground of laches.-Levittas v. Hart (Sup.) 636.

§ 329. Under Code Civ. Proc. § 531, a plaintiff is in default if he fails to serve a bill after the order therefor is made, though he served such bill after motion, but before the order, which was returned by defendant.-Hosner v. Keahon (Sup.) 720.

§ 236. Where plaintiff has served three complaints held not to state a cause of action, held,

XI. MOTIONS.
Striking out frivolous answer in summary pro-
ceedings to recover demised premises, see
Landlord and Tenant, § 305.

346. A demurrer to the complaint in an ac tion on a note held not frivolous.-Hood v. Hoffmann (Sup.) 892.

§ 350. In action on guaranty, rendition of judgment for defendant on the merits on motion for judgment on the pleadings, without striking out of plaintiff's proofs, held error.-Smith v. Prager (Sup.) 713.

§ 364. Though the relevancy of certain allegations in a complaint to set aside a deed did not appear, held, that they should not be stricken out, as their relevancy might be developed by evidence.-Welcke v. Trageser (Sup.) 161.

§ 364. Certain allegations, in a complaint to cancel a deed, as to the control of the property after making the deed, held material and not to be stricken out.-Welcke v. Trageser (Sup.) 161.

§ 364. Allegations in a complaint which merely set forth evidence may be stricken out on motion.-Welcke v. Trageser (Sup.) 161.

$364. In a complaint to set aside a deed by plaintiffs' mother to a corporation on the ground of fraud and undue influence by plaintiff's brothers, allegations as to the action of a legatee under the mother's will held to be stricken out on motion; the legatee not being a party to the action.-Welcke v. Trageser (Sup.)

161.

§ 364. In an action to cancel a deed on the ground of fraud and undue influence, allegations of facts in anticipation of the defense of estoppel are not material to plaintiffs' cause of action, and may be stricken out on motion.Welcke v. Trageser (Sup.) 161.

§ 364. Certain allegations of a complaint to set aside a deed on the ground of fraud, duress, and undue influence held irrelevant, and to be stricken out.-Welcke v. Trageser (Sup.) 161.

§ 364. In an action by stockholders for an accounting by a corporation and individual directors, an allegation as to the total issue of corporate stock and the amount thereof owned by the individual defendants held not to be stricken out as irrelevant.-Welcke v. Trageser (Sup.) 166.

which may be presented by the answer.-Welcke v. Trageser (Sup.) 161.

§ 365. A motion to strike out matter from a pleading as irrelevant is not in the nature of a demurrer, and the sufficiency of the pleading is not presented for determination.-Welcke v. Trageser (Sup.) 166.

§ 367. The remedy for an indefinite denial is by motion to make it more definite and certain.-Hinds, Noble & Eldredge v. Bonner (Sup.) 663.

8 367. A motion, in the alternative, to make a pleading more definite and certain or for a bill of particulars, is never regarded favorably by the court.-Jacob Bros. Co. v. Kunitzer (Šup.) 677.

§ 367. A complaint for money loaned held subject to a motion to make more definite, where alleged agreement to repay is not annexed.Pringle v. Mulholland (City Ct.) 572.

XII. ISSUES, PROOF, AND VARIANCE.
§ 376. Where, in replevin for goods, the an-
swer admitted the value of the goods to be a
certain sum, there was no issue as to their val-
ue, so as to require evidence on that question.-
John Hofman Co. v. Murphy (Sup.) 506.
XIII. DEFECTS AND OBJECTIONS,
WAIVER, AND AIDER BY VER-
DICT OR JUDGMENT.

§ 411. As Code Civ. Proc. §§ 498, 499, relative to waiver by failure to plead, refers only to defects in the complaint and waiver by defendant, an objection to a counterclaim is not waived by failure to demur or specifically object thereto by answer.-Van v. Madden (Sup.) 1115.

See Pawnbrokers.

PLEDGES.

§ 44. Ordinarily payment of the indebtedness releases collateral security.-Jackson v. Erkins (Sup.) 385.

§ 48. Complaint in an action by a pledgor against the pawnbroker held to state a cause of action for conversion.-Buchanan v. Provident Loan Society of New York (Sup.) 653. POLICE.

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

§ 364. Where material facts are charged in the same sentence with allegations of evidence, and they cannot be separated, the entire allegation should be stricken out, with leave to amend by stating the facts only.-Welcke v. Trageser (Sup.) 166.

POLICE POWER.

Of municipality, see Municipal Corporations, §§ 603, 621.

POLICY.

Of insurance, see Insurance.

POLITICAL RIGHTS.

§ 365. The question presented by a motion to strike out allegations of the complaint is whether the allegations are relevant to the 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 (§) NUMBER

POSSESSION.

See Adverse Possession.

Of demised premises, see Landlord and Tenant,
§§ 134, 295-305.

POWERS.

Creation by will, see Wills, § 684.
Of attorney, see Principal and Agent.

PRACTICE.

Procedure of particular courts, see Courts.
Prosecution of actions in general, see Actions,
$ 69.

In particular civil actions or proceedings.
See Account, § 17; Divorce, § 85; Ejectment;
Habeas Corpus, & 85; Mandamus, §§ 154-187;
Replevin.

Accounting by executor or administrator, see
Executors and Administrators, §§ 506-513.
Condemnation proceedings, see Eminent Do-
main, §§ 174–205.

Particular proceedings in actions.
See Affidavits; Appearance; Costs; Damages,
§ 185; Depositions; Evidence; Judgment:
Jury; Limitation of Actions; Parties; Plead
ing Process; Reference; Stipulations; Trial;
Venue

Nonsuit, see Trial, §§ 159, 164.

Particular remedies in or incident to actions.
See Arrest, §§ 22-35; Attachment; Discovery;
Injunction; Ne Exeat; Receivers.

Procedure in criminal prosecutions.

See Criminal Law.

PRESCRIPTION.

Acquisition of rights, see Adverse Possession, §
7, 13.

PRESENTMENT.

Of bill or note, see Bills and Notes, § 422.
Of claims against estate of decedent, see Ex-
ecutors and Administrators, §§ 221, 250.

PRESUMPTIONS.

In favor of constitutionality of statute, see Con-
stitutional Law, § 48.

Of grant, see Adverse Possession, § 104.
On appeal, see Appeal, §§ 927-931.

PRINCIPAL AND AGENT.

Admissions by agent, see Evidence, §§ 243-248.
Agency in particular relations, offices, or 00-
cupations.

See Attorney and Client; Brokers.
Corporate agents, see Corporations, §§ 283-353,
428, 507.
Municipal agents, see Municipal Corporations,
§§ 216-220, 747.

I. THE RELATION.

(A) CREATION AND EXISTENCE.
§ 23. In an action for price of beer sold to
defendant, evidence by defendant held insuffi-
cient to establish the agency of the one to whom
defendant paid the price.-Howard & Childs
Co. v. Conaty (Sup.) 614.

Procedure in exercise of special or limited juris- III. RIGHTS AND LIABILITIES AS TO

diction.

In bankruptcy, see Bankruptcy, § 20.

Procedure on review.

See Appeal; Justices of the Peace, § 189; New
Trial.

PREFERENCES.

THIRD PERSONS.

(A) POWERS OF AGENT.

§ 92. The maxim "qui facit per alium, facit
per se," applies only to an act authorized in
fact and not by implication.-Wallace v. John
A. Casey Co. (Sup.) 394.

§ 101. A superintendent of trucking held
Effect of proceedings in bankruptcy, see Bank- not to have implied authority to offer a reward
ruptcy, 198.
for the recovery of his employer's horse and
wagon.-Rubenstein v. Frost (Sup.) 681.

PREJUDICE.

§ 123. Principals held unable to defeat lia-
apparent authority in him.-Kilmer v. Hut-
ton (Sup.) 127.

Ground for reversal in civil actions, see Appeal, bility for an agent's acts by showing lack of
§§ 1050-1062.

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Effect of appearance, see Appearance.
In actions against particular classes of persons.
See Corporations, § 507.

In particular actions or proceedings.
In criminal prosecutions, see Criminal Law, §
See Injunction; Mandamus; Replevin.

216.

AND VALIDÍTY.

$66. Sureties upon a bond to a school, conditioned upon the payment by a prospective student of any sums charged for the rent of any room which might be assigned him, held liable for the rent of a room which a student contracted for for the succeeding school year, though he I. NATURE, ISSUANCE,_REQUISITES, did not return to occupy it.-President and Fellows of Harvard College v. Kempner (Sup.) 437. $83. Where defendants bound themselves to pay to a university the rent of any room, etc., which might be assigned to an infant student, they cannot raise the question of infancy to escape liability for any contract the infant made within the scope of the obligation of the bond.President and Fellows of Harvard College v. Kempner (Sup.) 437.

III. DISCHARGE OF SURETY.

§ 129. A surety held estopped from asserting that excessive payments to the principal, a building contractor, was a violation of the contract, which discharged the surety.-Hellman v. Farrelly (Sup.) 809.

PRIORITIES.

Between liens and right of dower, see Dower, § 27.

PRISONS.

36. Under Code Civ. I roc. § 723, held, a days, instead of six days, would be amended in summons by mistake made returnable in two furtherance of justice.-Spruhan v. Brown (City Ct.) 568.

II. SERVICE.

(C) PUBLICATION OR OTHER NOTICE. § 96. Affidavits for an order for service of summons by publication, under Code Civ. Proc. § 440, held not sufficient.-Murphy v. Frankin Sav. Bank in City of New York (Sup.) [228.

§ 96. An affidavit that certain defendants resided in Ohio and California, and that it would be impossible to make personal service upon them held sufficient under Code Civ. Proc. § 439, to sustain the order for service and the judgment.-Stanton v. Eastman (Sup.) 852.

§ 98. If the affidavit for service by publication on nonresidents tends to show compliance 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, § 17.

PRIVATE NUISANCES.

See Nuisance, §§ 3-37.

PRIVATE ROADS.

Rights of way, see Easements.

PRIVILEGE.

Effect on limitation, see Limitation of Actions, § 72.

after judgment.-Stanton v. Eastman (Sup.) 852.

PROHIBITION.

Of traffic in intoxicating liquors, see Intoxicating Liquors.

PROMISE OF MARRIAGE.

See Breach of Marriage Promise.

PROMISSORY NOTES.

Of witness as to testimony, see Witnesses, § 304. See Bills and Notes.

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