§ 497. [Amended, 1877.] Amendments in certain cases after decision of demurrer. - Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discretion, allow the party in fault to plead anew or amend, upon such terms as are just.(1) If a demurrer to a complaint is allowed, because two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions, as are necessary for the proper determination of the causes of action therein stated.(2)

Co. Proc.. part of 172. (1) Fielden v. Carrelli, 26 How. 173: s. c.. 16 Abb. 289; Lord v. Vreeland, 13 Abb. 195; Snow . First Nat. Bank, 7 Rob. 450: Lowry v. Inman, 6 Abb. N. S. 395; Whiting e. Mayor, 37 N. Y. 600; Thatcher v. Candee, 3 Keyes, 157. (2) See Robinson v. Judd, 9 How. 378-383, and 3 456, ante, and 1205, post.

$498. [Amended, 1877.] When objection may be taken by answer. -- Where any of the matters enumer ated in section four hundred and eighty-eight of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer.

Id., 147. Barclay v. Quick-silver Min. Co., 6 Lans. 25: Fulton Ins. Co. e. Baldwin, 37 N. Y. 648; Dillaye 2. Parks, 31 Barb. 132; Schofield v. Van Syckle, 23 How. 97: Zimmerman v. Schoenfeldt, 6 T. & C. 142; s. c., 3 Hun, 692; Hees e. Nellis, 65 Barb. 440; Fox v. Moyer, 54 N. Y. 125.

§ 499. Objection; when deemed waived. - If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action.

Id., 148. Giles v. Austin, 62 N. Y. 486; Fisher . Hall, 41 id. 416; Zimmerman v. Schoenfeldt, supra; Town v. Lovelass, 4 Hun, 696; Selover v. Coe, 63 N. Y. 438; Mosselman v. Caen, 4 T. & C. 171; People v. Crooks, 53 N. Y. 648.

ARTICLE THIRD.

ANSWER.

SEC. 500. Answer; what to contain.

501. Counterclaim defined.

502. Rules respecting the allowance of counterclaims.

503. Judgment, when demand and counterclaim are equal or un

equal.

504. Id.; for affirmative relief.

SEC. 505. Counterclaim, when defendant is sued in a representative ca

pacity.

506. Id.: when plaintiff is an executor or administrator.

507. Defendant may interpose several defences or counterclaims; rules relating thereto.

508. Partial defences.

509. When defendant to demand affirmative judgment.

511. When pleadings admit part of plaintiff's claim to be just, action may be severed, etc.

512. Judgment, where counterclaim only is interposed for less than plaintiff's claim.

513. Dilatory defences to be verified.

$500. [Amended, 1877.] Answer; what to contain. -The answer of the defendant must contain:

1. A general or specific denial of each material allegation of the complaint controverted by the defendant,(1) or of any knowledge or information thereof sufficient to form a belief.(2)

2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language. without repetition.(3)

Co. Proc., 149. (1) Mack r. Burt, 5 Hun, 28; Walsh v. Mehrback, 511. 445: Weaver v. Barden, 49 N. Y. 286; Allis v. Leonard, 46 1d. 688; Thompson v. Erle Ry., 45 14. 468. Facts provable under: Powers v. Rome, etc., 5 T. & C. 499; Townsend v. Townsend, 1 Abb. N. C. 81; People v. Christopher, 4 Hun, 805; Goodwin v. Hirsch, 37 N. Y. Supr. 543; Greenfield r. Mass. Mut. Ins. Co., 47 N. Y. 430; Hier v. Grant, id. 775; Evans r. Williams, 60 Barb. 346; Dalrymple r. Hunt, 5 Hun, 111; Carpenter v. Goodwin, 4 Daly, 89; Manning e. Winter, 7 Hun, 482; Boomer v. Koon, 6 id. 645; Miller v. Ins. Co., 1 Abb. N. C. 470. (2) Meehan v. Harlem Sav. Bank, 5 Hun, 439; Lloyd v. Burns, 38 N. Y. Supr. 423. See People v. Fields, 58 N. Y. 491: Powers v. Rome, etc., R. R. Co., 5 T. & C. 449. (3) Manning v. Winter, 7 Hun, 482; Jay . Hammond, 57 N. Y. 479; Springer e. Dwyer, 50 id. 19; Dubois e. Hermance, 56 Id. 673; Wehle e. Butler, 43 How. 5; Strong e. Sproul, 53 N. Y. 497; Inslee v. Hampton, 8 Hun, 230. See note to Voorhies' and Wait's Codes.

S501. [Amended, 1877.] Counterclaim defined. — The counterclaim, specified in the last section, must tend, in some way, to diminish or defeat the plaintiff's recovery,(1) and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents,(2) and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: (3)

1. A cause of action arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.(4)

2. In an action on contract, any other cause of action

on contract, existing at the commencement of the action.(5)

Substitute for first part of Co. Proc., 150. See Wilder r. Boynton, 63 Barb, 547. (1) Nat. Fire Ins. Co. v. McKay, 21 N. Y. 191; Waddell v. Darling, 51 id. 327; Hunt . Chapman, id, 555; Smith e. Hall, 14 Alb. L. J. 329; Caryl v. Williams, 7 Lans. 416. (2) Tallman v. Bresler, 65 Barb. 369; Pittman v. Mayor, 6 T. & C. 89; Burroughs v. Garrison, 15 Abb. N. S. 144; Foster v. Coe, 4 Lans. 53. (3) Perry v. Chester, 53 N. Y. 240; Bathgate . Haskins, 59 id. 533. (4). Coit v. Stewart, 12 Abb. N. S. 216; Clift v. Northrup, 6 Lans. 330; Isham v. Davidson, 52 N. Y. 237; Moore v. Rand, 60 d. 208; Hening v. Punnett, 4 Daly, 543; Hopkins v. Lane, 4 T. & C. 311; Dounce v. Dow, 57 N. Y. 16; Chamboret r. Cagney, 41 How. 125; s. c., 10 Abb. N. S. 31; Miller v. Barber, 4 Hun, 802; Gleadell v. Thomson, 56 N. Y. 194; Cook v. Soule, id. 420; Hoppough v. Struble, 60 id. 430; Glen, etc., v. Hall, 61 id. 226; Giles . Austin, 62 N. Y. 486. (5) Hunt v. Chapman, 51 N. Y. 555; Merrill v. Green, 55 id. 270; Davis v. Stover, 58 id. 473; Arnold v. Nichols, 64 id. 117. And see the elaborate notes to 159 in Voorhies' and Walt's Codes.

$502. [Amended, 1877.] Rules respecting the allowance of counterclaims. - But the counterclaim, specified in subdivision second of the last section, is subject to the following rules:

1. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him.(1)

2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him.(2)

3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counterclaim, if it might

have been so allowed in an action brought by the person beneficially interested.

Founded upon 2 R. 8. 354, 18, subds. 8, 9 and 10, and part of subd. 7. (1) Harway r. Mayor, 4 T. & C. 167; s. c., 1 Hun, 625, and cases; Brable r. Wood, 24 N. Y. 607: Colt r. Stewart, 50 id. 17; Trustees v. Wheeler, 61 id. 88; Ingraham e. Disborough, 47 id. 421; Bush e. Lathrop, 22 id. 535; Frick v. White, 57 id. 103: Westlake v. Bostwick, 35 N. Y. Supr. 256; Smith r. Fox. 48 N. Y. 674. (2) Weeks r. Pryor, 27 Barb. 80; Newell r. Salmans, 22 id. 650; Hatch r. Benton, 6 id. 28; and sce 16 Wend. 662; 12 id. 356; 6 Cow. 694; 5 Johus. 118; 3 Wend. 342; 12 id. 356.

§ 503. [Amended, 1877.] Judgment, when demand and counterclaim are equal or unequal. — Where a counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

Id., 21, 22 (2 Edm. 367). Ogden v. Coddington, 2 E. D. Smith, 317: Boston Silk Mills. Eull, 6 Abb. N. S. 399; s. c., 1 Sweeney, 359; 37 How. 299.

$504. Id.; for affirmative relief. In a case not specified in the last section, where a counterclaim is established, which entitles the defendant to an affirmative judgment, demanded in the answer, judgment must be rendered for the defendant accordingly.

Co. Proc., last clause of 263.

§ 505. Counterclaim, when defendant is sued in a representative capacity. — In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him.

2 R. 8. 355, 25. Patterson v. Patterson, 59 N. Y. 574, and cases. 506. Id; when plaintiff is an executor or administrator. In an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belonging, at the time of his

death, to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life-time; (1) and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity.(2) Execution can be issued upon such a judgment, only in a case where it could be issued upon a judgment, in an action against the executor or administrator.

2 R. S. 355, 23 and 24. (1) Patterson v. Patterson, 59 N. Y. 574; Merritt v. Seamen, 6 Barb. 333; Mercein v. Smith, 2 Hill, 213; Hills v. Tallmans, 21 Wend. 674; Fry v. Evans, 8 d. 531; Root r. Taylor, 20 Johns. 137; Ketchumi v. Milne, Seld. Notes, p. 56. (2) Merritt v. Seamen, 6 Barb. 330.

507. [Amended, 1879.] Defendant may interpose several defences or counterclaims; rules relating thereto. A defendant may set forth, in his answer, as many defences or counterclaims, or both, as he has. whether they are such as were formerly denominated legal or equitable. Each defence or counterclaim must be separately stated, and numbered. Unless it is interposed as an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended

to answer

Co. Proc., part of 150, am'd. Benedict v. Seymour, 6 How. 298; Llp pencott v. Goodwin, 8 id. 242; Bridget v. Payson, 5 Sandf. 210; Cramer v. Benton, 4 Lans. 291; 8. c., 60 Barb. 216; Hicks v. Sheppard, 4 Lans. 335. See notes to 150, Voorhies' Code; also id., Walt's Cole.

A par

508. [Amended, 1877.] Partial defences. tial defence may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defence to the entire complaint, or to one or more sepa rate causes of action, therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose. (1) Matter tending only to mitigate or reduce damages, in an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defence, within the meaning of this section.(2)

New. See post, 536. (1) Hager v. Tibbets, 2 Abb. N. S. 97; Bennett v. Matthews, 64 Barb. 410. (2) See Foland v. Johnson, 16 Abb. 235, and cases: Harter v. Crill, 33 Barb. 283; Moore v. ¡Devoy, 37 How, 18. See Voorhies' Code, 165, note f. (10th ed., p. 251). Fink v. Justh, 14 Abb. N. 8. 107; Spooner v. Keeler, 51 N. Y. 527; Jeffries v. McKellop, 48 How. 122; Wehle v. Haviland, 42 id. 399; Kelly v. Taintor, 48 id. 270.

59. [Amended, 1877.] When defendant to de