When defendant affirmative § 509. [Amended, 1877.] Where the defendant deems himself to demand entitled to an affirmative judgment against the plaintiff, by reason of judgment. a counterclaim interposed by him, he must demand the judgment in his answer. When pleadings part of New. See ante, § 504. And see Bathgate v. Haskin, 63 N. Y. (18 Sick.) 261; Day v. Hammond, 57 N. Y. (12 510 struck out in 1877. Sick.) 479; American Dock and Improvement Co. v. Staley, 8 J. & Sp. 539. § 511. [Amended, 1877.] Where a part of the plaintiff's claim, admit which may be severed from the remainder, is admitted upon the plaintiff's pleadings, the court, upon the plaintiff's motion, may, in its discreup action may tion, order that the action be severed; that a judgment be entered be severed, for the plaintiff for the part so admitted; and, if the plaintiff so just, etc. Judgment, where Counter claim only is inter posed for elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim. The order must prescribe the time and manner of the plaintiff's election. If the plaintiff elects to continue the action, his right to costs upon the judgment is the same, as if it was taken in an action brought only for that part of the claim. If the plaintiff does not elect to continue the action, costs must be awarded, as upon final judgment in any other case. Substituted for the concluding paragraph of § 244, Code Pro. See Wait's Code, 420; Wireman v. Remington Sewing Machine Co., 7 J. & Sp. 314. § 512. In an action upon contract, where the complaint demands judgment for a sum of money only, if the defendant, by his answer, does not deny the plaintiff's claim, but sets up a counterclaim less than amounting to less than the plaintiff's claim, the plaintiff, upon filing with the clerk an admission of the counterclaim, may take judgment for the excess, as upon a default for want of an answer. The admission must be made a part of the judgment-roll. plaintiff's claim. Dilatory defences Concluding paragraph of subd. 1, § 246, Code Pro., amended; Wait's Code, 428. See Peyser v. McCormack, 7 Hun, 300. § 513. A defence, which does not involve the merits of the to be action, shall not be pleaded, unless it is verified as prescribed in title second of this chapter. verified. From 2 R. S. 364, § 7. ARTICLE FOURTH. SEC. 514. Reply; what to contain. REPLY. 515. Judgment upon failure to reply. 516. Cases where the court may require a reply. 517. Plaintiff may set forth several avoidances in reply. what to $ 514. [Amended, 1877.] Where the answer contains a counter- Reply; claim, the plaintiff, if he does not demur, may reply to the counter- contain. claim. The reply must contain a general or specific denial of each material allegation of the counterclaim, controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defence to the counterclaim. From Code Pro., § 153. See Wait's Code, 277; 2 Wait's Pr. 440, 442; and see Toomey v. Andrews, 48 How. 332; Geenia v. Keah, 66 Barb. 245; Ludington v. Slauson, 6 J. & Sp. 81; Kelty v. Long, 4 N. Y. Sup. Ct. (T. & C.) 163; S. C., 1 Hun, 714; Johnson v. upon reply. § 515. If the plaintiff fails to reply or demur to the counter- Judgment claim, the defendant may apply, upon notice, for judgment there- failure to upon; and, if the case requires it, a reference may be ordered, or a writ of inquiry may be issued, as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment. Code Pro., part of § 154, amended; 2 Wait's Pr. 520-522; Wait's Code, 279. See Geenia v. Keah, 66 Barb. 245. where the require a reply. § 516. Where an answer contains new matter, constituting a Cases defence by way of avoidance, the court may, in its discretion, on the court may defendant's application, direct the plaintiff to reply to the new matter. In that case, the reply, and the proceedings upon failure to reply, are subject to the same rules as in the case of a counterclaim. Concluding 'paragraph of § 153, Code Pro.; Wait's Code, 277. See cases cited in note to § 514, ante. may set § 517. [Amended, 1877.] A reply may contain two or more Plaintiff distinct avoidances of the same defence or counterclaim; but they forth must be separately stated and numbered. New. See ante, § 507. several avoidances in reply. Applica tion and effect of this chapter. Pleadings liber TITLE II. Provisions generally applicable to pleadings. SEC. 518. Application and effect of this chapter. 519. Pleadings to be liberally construed. 520. Pleadings to be subscribed; within what time to be served. 521. When defendant to serve copy answer on co-defendant. 522. Allegation not denied; when to be deemed true. 523. When pleading must be verified; and when verification may be omitted. 524. Form and construction of certain allegations and denials in verified pleading. 525. Verification; how and by whom made. 526. Form of affidavit of verification. 527. When verification may be confined to a counterclaim. 528. Remedy for defective verification, or want of verification. 529. When defendant not excused from verifying answer to charge of fraud. 530. Private statute; how pleaded. 531. Account; how pleaded. Bill of particulars. 532. Judgment; how pleaded. 533. Conditions precedent; how pleaded. 534. Instrument for payment of money; how pleaded. 535. Pleadings in libel and slander. 536. Pleading mitigating circumstances, in action for a wrong. 537. Frivolous pleadings; how disposed of. 538. Sham defences to be stricken out. 539. Material variances; how provided for. 540. Immaterial variances how provided for. 541. What to be deemed a failure of proof. 542. Amendments of course. 543. Amended pleading to be served; answer thereto. 544. Supplemental pleadings. 545. Motion to strike out irrelevant, etc., matter. 546. Indefinite or uncertain allegations. § 518. This chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law. Substituted for § 140, Code Pro. See 2 Wait's Pr. 292; Wait's Code, 181, notes to 140; see, also, Abbott v. New York Central, etc., R. R. Co., 12 Abb. § 519. The allegations of a pleading must be liberally construed, to be her with a view to substantial justice between the parties. ally construed. Code Pro., § 159. See Wait's Code, 289-293; 2 Wait's Pr. 285–291. A pleading is sufficient when it contains such a statement of facts as enables the court to perceive, without regard to the particular language used, or the order or manner of its expression, that a cause of action exists, and that there is the appropriate prayer for the relief to which the plaintiff is justly entitled. McGraw v. Morgan, 5 Daly, 493, 496. And see Powers v. French, 1 Hun, 582; S. C., 4 N. Y. Sup. Ct. (T. & C.) 65; Alfaro v. Davidson, 8 J. & Sp. 87; Matthews v. Hubbard, 47 N. Y. (2 Sick.) 428; Conaughty v. Nichols, 42 N. Y. (3 Hand) 83, 85; Ayers v. Lawrence, 59 N. Y. (14 Sick.) 192. In construing a pleading a restricted meaning should not be given to words nsed, clearly susceptible of a more liberal construction, unless the whole pleading shows that the language was used in its restricted sense; and especially so, when such restricted interpretation would exclude a defence on the merits. Clare v. National City Bank, 14 Abb. N. S. 326; S. C., 3 J. & Sp. 261. And in order that a complaint may be overthrown by a demurrer, it must present defects so substantial in their nature and so fatal in their character as to authorize the court to say, taking all the facts to be admitted, that they furnish no cause of action whatever. Olery v. Brown, 51 How. 92. to be sub within § 520. A pleading must be subscribed by the attorney for the Pleadings party. A copy of each pleading, subsequent to the complaint, must scribed; be served on the attorney for the adverse party, within twenty days what time after service of a copy of the preceding pleading. See Code Pro., § 156; Wait's Code, 280; 2 Wait's Pr. 301-304. to be served. fendant copy on co-defendant. § 521. Where the judgment may determine the ultimate rights When deof two or more defendants, as between themselves, a defendant, who to serve requires such a determination, must demand it in his answer, and answer must, at least ten days before the trial, serve a copy of his answer upon the attorney for each of the defendants, to be affected by the determination. The controversy between the defendants shall not delay a judgment, to which the plaintiff is entitled; unless the court otherwise directs. New. See post, § 1204. tion not when to be true. § 522. Each material allegation of the complaint, not contro- Allega verted by the answer, and each material allegation of new matter in denied; the answer, not controverted by the reply, where a reply is required, deemed must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires. Code Pro., 168; Wait's Code, 311-313; 2 Wait's Pr. 425. See Isham v. Davidson, 52 N. Y. (7 Sick.) 237; Dambman v. Schulting, 4 Hun, 50; S. C., 6 N. Y. Sup. Ct. (T. & C.) 251; Chace v. Higgins, 1 N. Y. Sup. Ct. (T. & C.) 229, 233; Kelty v. Long, 4 N. Y. Sup. Ct. (T. & C.) 163, 164; S. C., 1 Hun, 714; Lillis v. O'Conner, 8 id. 280, 282; Von Sachs v. Kretz, 10 id. 95; Townshend v. Townshend, 1 Abb. N. S. 81. Where a demurrer is interposed, in an action for relief, which is overruled and no answer is put in, the material facts stated in the complaint are, for the purposes of the action, to be taken as true. Darling v. Brewster, 55 N. Y. (10 Sick.) 667; S. C., 8 Alb. Law Jour. 215. That express admissions cannot be contradicted, see Van Dyke v. Maguire, 57 N. Y. (12 Sick.) 429. pleading § 523. Where a pleading is verified, each subsequent pleading, When except a demurrer, or the general answer of an infant by his guar- must be dian ad litem, must also be verified. But the verification may be and when verified; tion may be omitted. verifica- omitted, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein. Form and construction of certain and de nials in verified Code Pro., §§ 156, 157; Laws of 1854, ch. 75; 4 Edm. St. 541. See Wait's Code, 280, 281, notes to §§ 156 and 157; 2 Wait's Pr. 335-338. The provision excusing a party from verifying his pleading where he would be privileged from testifying as a witness to the truth of any matter denied by the pleading, is held to be applicable only to cases where the matter relied on is contained in the pleading to be answered. Thus, where the plaintiff sued for money lent, and the de fendant answered that the loan was made in a transaction in violation of the lottery laws, it was held, that he was not entitled to serve this answer without verification. Fredericks v. Taylor, 14 Abb. N. S. 77; S. C., 52 N. Y. (7 Sick.) 596. The question whether or not a pleading must be verified is one of substantial right. Id. See People v. Whitney, 1 N. Y. Sup. Ct. (T. & C.) 533; Matter of Loew, 50 How. 373. § 524. The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading. Unless they allegations are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a pleading. criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information, to form a belief, with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information. Verifica tion; how and by whom made. New. See Slade v. Joseph, 5 Daly, 187; Tilton v. United States Life Insurance Company, 1 Abb. N. C. 348; Thompson v. Lumley, id. 254; S. C., 64 N. Y. (19 Sick.) 631; People v. § 525. The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows: 1. Where the party is a domestic corporation, the verification must be made by an officer thereof. 2. Where the people of the State are, or a public officer, in their behalf, is the party, the verification may be made by any person acquainted with the facts. 3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, and capable of making the affidavit; or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; or where the action or defence is founded upon a written instrument for the payment of money only, which is in the posses |