TITLE 3. § 2936. The complaint must state, in a plain and direct manner, complaint. the facts constituting the cause of action. [Id., subd. 3, unaltered.] § 2937. The plaintiff may unite, in the same complaint, two or what more causes of action, where they all arise out of 1. The same transaction, or transactions connected with the same subject of action; or 2. Contract, express or implied; or 3. Personal injuries, and injuries to property, or either. But it must appear, upon the face of the complaint, that all the causes of action so united belong to one of the foregoing subdivisions of this section; that they are consistent with each other; that they require the same judgment; and, except as otherwise prescribed by law, that they affect all the parties. Where a cause of action, for which a defendant might be arrested, is united with a cause of action, for which he cannot be arrested, an execution against the person of the defendant cannot be issued upon the judg ment. [New. The subject has been heretofore unprovided for, whence considerable confusion has arisen. This section has been modelled upon 484 of this act, which regulates the joinder of causes of action in courts of record, omitting matters inapplicable to a justice's court, and those which are sufficiently provided for elsewhere in this chapter. The concluding portion of the section varies also from that of § 484 in various particulars, in order to adapt it to a justice's court.] causes of action may be joined. § 2938. The answer may contain a general denial of each allega- Answer. tion of the complaint, or a specific denial of one or more of the material allegations thereof. It may also set forth, in a plain and direct manner, new matter, constituting one or more defences or counterclaims. 6. [Co. Proc., § 64, subd. 4, amended by substituting "general denial of each allegation of the complaint, or a specific denial of one or more of the material allegations thereof," for denial of the complaint or of any part thereof;" and "it may also set forth," for "notice;" by omitting "of" after "manner;" and by substituting "new matter, for any facts," and, one or more defences or counterclaims," for "a defence or counterclaim."] 66 § 2939. In a case specified in subdivision third or fourth of sec- Demurrer. tion 2935 of this act, a party may demur to the pleading of the adverse TITLE 3. General rules of party, or, if it is a complaint, to one or more distinct and separate causes of action, where it is not sufficiently explicit to be understood; or where it does not state facts sufficient to constitute a cause of action, or counterclaim, as the case may be. If the court deems the demurrer well founded, it must permit the pleading to be amended; and if the party fails so to amend, the defective pleading, or part of a pleading, demurred to, must be disregarded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election. [Id., subd. 6 and 7, amended by adding the reference to § 2935; by substituting the words, "or, if it is a complaint, to one or more distinct and separate causes of action," for "or any part thereof;" by substituting the words, "be understood," for " enable him to understand it;" and the clause at the conclusion of the first sentence for "or it contains no cause of action or defence, although it be taken as true." These amendments are merely for the purpose of correcting obvious defects of expression, except the clause permitting the defendant to demur to a distinct cause of action, or the plaintiff to demur to a distinct counterclaim. It is not intended, by the latter amendment, to make any change in the essential requisites of the pleadings; on the contrary, the provisions of subd. 2 and 5 of § 64 of the former Code are substantially retained in the next section. But it appeared to be desirable, especially in view of the recent extension of the jurisdiction of these courts, and the special provisions for trying issues of law upon appeal, to enable the parties, if they prefer so to do, to present distinctly questions of law, arising upon one or more separate causes of action stated in the complaint, or separate counterclaims stated in the answer, substantially as in courts of record. This is all the object and effect of the amendment. The last sentence was inserted to supply an omission in the former statute.] § 2940. A pleading, except as otherwise prescribed in section pleading. 2951 of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice in his docket-book: if it is written, it must be filed by him, and a reference to it made in his docketbook. A pleading is not required to be in any particular form; but it must be so expressed, as to enable a person of common understanding to know what is intended. Account, or instru [Id., subd. 2 and 5, amended by adding the exception in the first sentence, in accordance with Co. Proc., § 55.] § 2941. For the purpose of setting forth a cause of action, dement for fence, or counterclaim, founded upon an account, or upon an instruof money. ment for the payment of money only, it is sufficient for the party to payment deliver the instrument, or a copy of the account to the court, and to state that there is due to him thereupon, from the adverse party, a specified sum, which he claims to recover or to set off. [Id., subd. 9.] TITLE 3. require exhibited. § 2942. The court may, upon the request of either party, made Court may when issue is joined, require the adverse party to exhibit his account items to be or demand, or to state the nature thereof, as far as it is in his power so to do, at that or another specified time; and in case of his default, it may preclude him from giving evidence of such parts thereof, as have not been so exhibited or stated. [Id., subd. 14, amended by substituting "or" for "on," before "demand," for the purpose of correcting a supposed error committed in engrossing the act. The commissioners, having made a special application to ascertain how the original statute read, were informed by the secretary of State, that the word is plainly "on;" although in Judge EDMONDS's edition of the statutes, it is printed "or." See 5 Edm., 18.] rial vari §2943. A variance, between an allegation in a pleading and the Immate proof, must be disregarded as immaterial, unless the court is satisfied ance to be that the adverse party has been misled thereby, to his prejudice. [Id., subd. 10.] disregarded. ment of pleadings. § 2944. The court must, upon application, allow a pleading to Amendbe amended, at any time before the trial, or during the trial, or upon appeal, if substantial justice will be promoted thereby. Where a party amends his pleading after joinder of issue, or pleads over upon the decision of a demurrer, and it is made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party, in consequence of the amendment or pleading over, an adjournment must be granted. The court may also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party. [Id., subd. 11, amended so as to give to either party an absolute right to amend, in accordance with Ryan v. Lewis, 3 Hun, 429; Wood v. Shultis, 4 Hun, 309; and Walsh v. Cornett, 17 Hun, 27; also by making the second sentence applicable to a case where a party pleads over upon the decision of a demurrer. In general, the court, under the former statute, would not allow amendments upon appeal. McGinnis v. Mayor, etc., of N. Y., 6 Daly, N. Y. C. P., 416. This section, however, puts amendments upon appeal on the same footing, as those made in the court below.] TITLE 3. Counterclaims. Id.; where executor or trustee is a party. Consequence of plead counter claim. § 2945. Sections 501 and 502 of this act apply to a counterclaim in an action brought in a justice's court; except that such a counterclaim cannot be interposed, unless it is of such a nature, that a justice's court has jurisdiction of a cause of action founded thereon.(*) [Substituted for 2 R. S., 234, Part 3, ch. 2, tit. 4, § 50 (3 R. S., 5th ed., 434-435; 2 Edm., 250-251). It was held in Williams v. Bitner, 1 Lans., 200, that Co. Proc., §64, subd. 4, permitted the interposition of a counterclaim in a justice's court, of the same nature as the counterclaim allowed in an action in a court of record. If this ruling was correct, the effect of § 64 of the Code of Procedure was to repeal subd. 1-6 of § 50 of the R. S. Even if it did not declare the true construction of the former statute, such a rule should be established, subject, of course, to the limited jurisdiction of a justice's court. The remainder of § 50, and §§ 52, 55 and 56 of the R. S., as well as the provisions of Co. Proc., § 150, are contained in §§ 501, 502, 505 and 506; which are made applicable by this and the next section, as qualified by § 3134, post, to an action in a justice's court, as far as the constitution of that court and its mode of procedure enable the application to be made. See, for a further explanation of this complicated question, the notes to §§ 501 and 502.] in § 2946. Sections 505 and 506 of this act apply to a counterclaim an action against a person sued in a representative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff upon a counterclaim, for a sum exceeding two hundred dollars.() [Substituted for id., §§ 55 and 56. The making of § 505 applicable supplies in part an omission in the present statute.] § 2947. Where the defendant, in an action to recover damages neglect to upon or for breach of a contract, neglects to interpose a counterclaim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof. The last section [Id., § 57 (3 R. S., 5th ed., 436; 2 Edm., 252), with amendments, to conform the statute to changes since made in the law, with respect to counterclaims and the assignability of things in action.] § 2948. But the prohibition contained in the last section does qualified. not extend to either of the following cases: 1. Where the amount of the counterclaim is two hundred dollars more than the judgment which the plaintiff recovers. (a) For sections 501 and 502, see pp. 201, 202. (b) Sections 505 and 506 are on p. 203. 2. Where the counterclaim consists of a judgment, rendered before the commencement of the action, in which it might have been interposed. 3. Where the counterclaim consists of a claim for unliquidated damages. 4. Where the counterclaim consists of a claim, upon which another action was pending, at the time when the action was commenced. 5. Where judgment is taken against the defendant, without personal service of the summons upon him, or an appearance by him. [Id., § 58, as amended by L. 1840, ch. 317, with such alterations as were required to make the section correspond to the foregoing provisions of this title, and also the following: Subd. 3 of the original, which is taken into the next succeeding section, has been omitted here; and subd. 4 has also been omitted, because its substance is contained in subd. 5 of this section. Subd. 3 (subd. 5 of the original), omits the words, "which could not be set off on the trial of the cause, according to the preceding provisions." The whole subdivision was unnecessary in the Revised Statutes, as the cases included within it did not come within the language of the next preceding section; but now a counterclaim includes a recoupment as well as a set-off, so that this section retains the first clause of the subdivision; but the second, which has been omitted, would now lead to consequences not contemplated by the framers of the statute. Subd. 5, as already stated, includes the case provided for in subd. 4 of the original. It also covers L. 1831, ch. 300, § 39, last clause (3 R. S., 5th ed., 464; 4 Edm., 474), as modified by the provisions of § 2918, ante; but it extends, also, to various other cases, arising under statutes subsequent to the R. S., and analogous to the cases thus provided for, in the respect that judgment may be taken against a defendant, without his having actually had an opportunity to interpose his counterclaim.] TITLE 3. upon claim. § 2949. Where a counterclaim is established, which equals the Judgment plaintiff's demand, the judgment must be in favor of the defendant, counterWhere 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, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either: 1. Set off so much of the counterclaim as is sufficient to satisfy the plaintiff's demand, and render judgment for the defendant for his costs; in which case, the defendant may maintain an action for the residue; or, |