how apClerk, act. § 472. The court in which the action is brought, or a judge Guardian, thereof, or, if the action is brought in the supreme court, the county pointed. judge of the county where the action is triable, may appoint a when to guardian ad litem for an infant, either plaintiff or defendant, as prescribed in this article. The clerk must act in that capacity, where the court or the judge appoints him. No person, other than the clerk, shall be appointed such a guardian, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment. See Code Pro., § 115; 2 R. S. 465, § 4; 1 Wait's Pr. 569. The second sen tence of the section is new. for absent fendant. § 473. [Amended, 1877.] Where an infant defendant resides Guardian within the State, and is temporarily absent therefrom, the court infant demay, in its discretion, make an order designating a person to be his guardian ad litem, unless he, or some one in his behalf, procures such a guardian to be appointed, as prescribed in the last two sections, within a specified time after service of a copy of the order. The court must give special directions in the order, respecting the service thereof, which may be upon the infant. The summons may be served by delivering a copy to the guardian so appointed, with like effect as where a summons is served without the State upon an adult defendant, pursuant to an order for that purpose, granted as prescribed in section four hundred and thirty-eight of this act; except that the time to appear or answer is twenty days after the service of the summons, exclusive of the day of service. Code Pro., § 116, subd. 2, amended. See 1 Wait's Pr. 569, 570. not to property security § 474. Except in a case where it is otherwise specially prescribed Guardian by law, a guardian, appointed for an infant, as prescribed in this receive article, shall not be permitted to receive money or property of the until infant, other than costs and expenses allowed to the guardian by the given. court, until he has given sufficient security, approved by a judge of the court, or a county judge, to account for and apply the same, under the direction of the court. Code Pro., 420, amended. See 1 Wait's Pr. 571. § 475. The security must be a bond to the infant, in such pen- Security. alty as the judge directs, not less than twice the sum, or the value of the property, to be received, executed by the guardian and at least two sureties, approved by the judge, and filed in the office of the clerk. The infant, or any other party to the action, may afterwards Last two sections not to apply to general guardian. Liability of defendant's apply for an order, directing a new bond to be given, with an increased penalty; or the court may so direct, of its own motion. From 2 R. S. 465. § 476. The last two sections do not apply to the general guardian of the infant, who has been appointed his guardian ad litem, as prescribed in this article; but the court may, at any time, require the general guardian to give additional security for the faithful discharge of his trust, before receiving money or property of the infant, under a judgment or order in the action. See Sup. Ct. Rule 66; Wait's Code, 856. § 477. A person appointed guardian, as prescribed in this article, for an infant defendant in an action, is not liable for the costs of the for costs. action, unless specially charged therewith by the order of the court, guardian for personal misconduct. 2 R. S. 466, § 12. See Wait's Code, 630, § 316, and note. CHAPTER VI. PLEADINGS IN COURTS OF RECORD, INCLUDING TITLE I.- THE CONSECUTIVE PLEADINGS IN AN ACTION. TITLE II.- PROVISIONS GENERALLY APPLICABLE TO PLEADINGS. TITLE I The consecutive pleadings in an action. ARTICLE 1. Complaint. 2. Demurrer. 3. Answer. 4. Reply. ARTICLE FIRST. COMPLAINT. SEC. 478. First pleading to be complaint 479. Copy complaint, when to be served. 480. Consequence of failure. 481. Complaint; what to contain. 482. When interlocutory and final judgment may be demanded. 483. Causes of action to be separately stated. 484. What causes of action may be joined in the same complaint. § 478. The first pleading, on the part of the plaintiff, is the First complaint. Code Pro., § 141. pleading to be complaint. com when to § 479. [Amended, 1877.] If a copy of the complaint is not Copy delivered to a defendant, at the time of the delivery of a copy of plaint, the summons to him, either within or without the State, his attor- be served. ney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if, after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action. Conse quence of failure. Complaint; what to contain. When inter locutory and final From Code Pro., § 130, with amendments. See Wait's Code, 161, 162; Paine v. McCarthy, 3 N. Y. Sup. Ct. (T. & C.) 755; S. C., 1 Hun, 78; 1 Wait's Pr. 302. § 480. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. New provision. § 481. The complaint must contain: 1. The title of the action, specifying the name of the court in which it is brought; if it is brought in the supreme court, the name of the county, which the plaintiff designates as the place of trial; and the names of all the parties to the action, plaintiff and defendant. 2. A plain and concise statement of the facts, constituting each cause of action, without unnecessary repetition. 3. A demand of the judgment to which the plaintiff supposes himself entitled. Code Pro., 142, amended. See 2 Wait's Pr. 369; Wait's Code, 185, notes; Salisbury v. Stinson, 10 Hun, 243. Matter of law is not matter to be alleged in pleadings, and no issue can be framed upon an allegation as to the law. Facts only are pleadable, and upon them, without allegations, the courts pronounce and apply the law. People v. Commissioners of Highways of the Town of Marlborough, 54 N. Y. (9 Sick.) 276. § 482. [Amended, 1877.] In an action triable by the court, without a jury, the plaintiff may, in a proper case, demand an inter judgment locutory judgment, and also a final judgment, distinguishing them may be demanded. Causes of action to be sepa rately stated. clearly. New provision. See post, ch. 11. § 483. Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action. must be separate and numbered. From Code Pro., § 167. See 2 Wait's Pr. 368; Wait's Code, 305, and notes to section 167; id. 832, notes to rule 25. The provision requiring causes of action to be separately stated and numbered must be regarded as formal and not substantial. Goldberg v. Utley, 60 N. Y. (15 Sick.) 427. And where a complaint contains, in one count, two causes of action, which cannot be properly united in the same action, the omission to state them in separate counts does not deprive the defendant of his right to demur. Id.; Wiles v. Suydam, 64 N. Y. (19 Sick.) 173. In an action for moneys fraudulently obtained and unlawfully withheld, a suit to recover the gross amount may be treated as embracing but one cause of action. And the fact that the moneys have been obtained by divers frauds perpetrated at different times, does not reduce the cause of action of the party defrauded to as many distinct causes of action as there are frauds. People v. Tweed, 5 Hun, 353; 63 N. Y. (18 Sick.) 194; S. C., 50 How. 194. A complaint which alleges that the defendant led the plaintiff into making a hard and unconscionable lease, and then, after the plaintiff had sown crops, etc., turned him off, and procured his arrest on a malicious charge of embezzlement, and took possession of his household goods, etc., and that all these acts were in pursuance of the defendant's plan to defraud the plaintiff, states but one cause of action. Bebinger v. Sweet, 1 Abb. N. C. 263. See Woodbury v. Deloss, 65 Barb. 501; Hubbell v. Lerch, 62 id. 295; S. C. affirmed, 58 N. Y. (13 Sick.) 295. A claim for damages for withholding possession of real estate does not include the rents and profits thereof during the time the possession has been wrongfully withheld; the latter is a separate and distinct cause of ac- The rule which requires causes of causes of § 484. [Amended, 1877.] The plaintiff may unite, in the same What complaint, two or more causes of action, whether they are such as action were formerly denominated legal or equitable, or both, where they joined in are brought to recover as follows: 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal conversation, or seduction. 3. For libel or slander. 4. For injuries to real property. 5. Real property, in ejectment, with or without damages for the withholding thereof. 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. 8. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or transactions connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. 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; and, except as otherwise prescribed by law, that they affect all the parties to the action and it must appear upon the face of the complaint, that they do not require different places of trial. From Code Pro., § 167, with amendments. See Wait's Code, 305, and notes to § 167; 2 Wait's Pr. 361, et seq. A cause of action on contract for a breach of a covenant of quiet enjoyment contained in a lease, and one in tort for unlawfully entering the apartments leased and injuring the lessee's property therein, cannot be joined. may be the same com plaint. |