§ 2935. Pleadings.

court are:

The pleadings in a justice's

1. The plaintiff's complaint.

2. The defendant's answer.

3. The defendant's demurrer to the complaint, or to one or more distinct causes of action, separately stated therein.

4. The plaintiff's demurrer to one or more counterclaims stated in the answer.

Code of Proo, 64, subd. 1.

Schoonmaker v. Spenser, 54 N. Y. 366; Ross v. Hamilton, 3 Barb. 609; Willard v. Bridge, 3 id. 361: Ressequie v Bronson, id. 541; Smith v. Mitten, 13 How. 325; Hubbell e. Clark, 1 Hilt. 67; Evans v. Williams, 60 Barb. 346.

2936. Complaint.-The complaint must state, in a plain and direct manner, the facts constituting the cause of action.

Id., subd. 3. Houghton v. Strong, 1 Cai. 486; Bradner v. Howard, 75 N. Y. 417; 14 Hun, 420; People ex rel. Judges, 21 Wend. 20; Elhel v. Smith, 3 Cai. 187; Willard v. Bridge, 4 Barb. 361; Bowdich v. Salisbury, 9 Johns. 366 Stolp v. Van Cortland, 3 Wend. 492; Stafford v. Williams, 4 Den. 182; Hubbell v. Clark, 1 Hilt. 67; St. Lawrence Mut. Ins. Co. v. Paige, 1id. 430; Cushingham v. Philips, 1 E. D. S. 416; Smith v. Kerr, 3 N. Y. 144 Mosher v. Lawrence, 4 Denio, 419; Copley v. Rose, 2 N. Y. 115; Howe Sewing M. Co. v. Haupt, 7 Daly, 108; Onderdonk v. Ranlett, 3 Hill, 323; Harvey v. Large, 51 Barb. 222; Doughty v. Crozier, 9 Abb. 441; Moose v. Noble, 36 How. 385; 53 Barb. 425; Ransom v. Wetmore, 39 id. 104; Irwine e. Wortendyke, 2 E. D. S. 374; Fowler v. Westervelt, 40 Barb. 374; 17 Abb. 59; Delaney v. Nagle, 16 Barb. 96; Rockwell v. Perine, 5 id. 573; Petrie v. Woodworth, 3 Cai. 219.

§ 2937. What causes of action may be joined.— The plaintiff may unite, in the same complaint, two or more causes of action, were 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 judgment.

New. Willard v. Bridge, 4 Barb, 361; Mayor v. Mason, 1 Abb. 344; 4 E. D. S. 142; Burdick v. McAmbly, 9 How. 117; Brown v. Katline, 7 Alb. L. J. 204; Hall v. McKechnie, 22 Barb. 244; Frazier v. Gibson, 15 Hun, 37; Wentworth v. Buhler, 3 E D. S. 305.

2938. Answer. The answer may contain a general denial of each allegation 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 defenses or counterclaims.

Code of Proc., subd. 4, 2 64. Clapp v. Graves, 26 N. Y. 418; 2 Hilt. 243, 317; 9 Abb. 20; Andreas v. Thorp, 1 E. D. S. 615; Monteith v. Cash, id. 412; 10 N.Y.Leg. Obs. 348; Harper v. Leal, 10 How. 276; Hillard v. Austin, 17 Barb. 141; Hall v. McKechnie, 22 id. 244; Osburne v. Gilbert, 52 id. 158 Ross v. Hamilton, 3 id. 609; Conklin v. Field, 37 How. 455; Hodges v. Hunt, 22 Barb. 150; Wilcox v. Palmeter, 2 Hun, 517; Penfield v. Jacobs, 21 Barb. 335; Cohen v. Dupont, 1 Sandf. 260; Ingals v. Sprague, 10 Wend. 672; Overseers of Stephentown v. Whitman, 15 Johns. 208; Wright v. Maseras, 56 Barb. 521; Evans v. Williams, 60 id. 346; Tripp v. Riley, 15 id. 333; Rice v. Hallenbeck, 19 id. 664; Willard v. Bridge, 4 id. 361; Shannon v. Comstock, 21 Wend. 457; Avery v. Slack, 17 id. 85; Dennison v. Carnahan, 1 id. 144; West v. Stanley, 1 Hill, 69; Culver v. Barney, 14 Wend. 161; McDowell v. Van Dusen, 12 Johns. 356; Abbe v. Clark, 31 Barb. 238.

$2939. Demurrer.-In a case specified in subdivision third or fourth of section 2935 of this act, a party may demur to the pleading of the adverse 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 disre garded. If the court deems the demurrer not well founded, it must permit the party making it to plead over, at his election.

Id., subdivisions 6 and 7. Willard v. Bridge, 4 Barb. 361; Mayor v. Mason, 1 Abb. 344; 4 E. D. Smith, 344; Stern v. Drinker, 2 id. 401; Hall v. McKechnie, 22 Barb. 244; Rice v. Hallenbeck, 19 id. 664; Tripp v. Riley, 15 id. 333; Lampman v. Rice, 63 id. 485; Van Hoesen v. Van Alstyne, 3 Wend. 75; Hillard v. Austin, 17 Barb. 141; Turck v. Richmond, 13 id. 533; Glass v. Keulson, 3 Abb. 100; Irvine v. Forbes, 11 Barb. 587; Harper v. Leal, 10 How. 216; Hayes v, Kedzie, 11 Hun, 577; Board of Excise v. Doherty, 16 How. 46.

2940. General rules of pleading.- A pleading, except as otherwise prescribed in section 2951 of this act, may be oral or written. If it is oral, the substance thereof must be entered by the justice in his docketbook; if it is written, it must be filed by him, and a

reference to it made in his docket-book. 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.

Ii., sub-i. 2 and 5, amended. Williams v. Price, 2 Sandf. 229.

$2941. Account, or instrument for payment of money. For the purpose of setting forth a cause of action, defence, or counterclaim, founded upon an account, or upon an instrument for the payment of money only, it is sufficient for the party to deliver the instru ment, 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.

2942. Court may require items to be exhibited. The court may, upon the request of either party, made when issue is joined, require the adverse party to exhibit his account 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. Harrington. Ensign, 11 Wend. 554.

§ 2943. Immaterial variance to be disregarded. — A variance, between an allegation in a pleading and the proof, must be disregarded as immaterial, unless the court is satisfied that the adverse party has been misled thereby, to his prejudice.

Id., subd. 10. Irvine v. Wortendyke, 2 E. D. Smith, 374; Harris v. Story, id. 363; Shall v. Lathrop, 3 Hill, 237; Raymond v. Trañïarn, 12 Abb. 52.

2944. Amendment of pleadings. — The court must, upon application, allow a pleading to be 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. Doughty v. Crozier, 9 Abb. 411; Bigelow . Dunn, 36 How. 120; 53 Barb. 570; Fulton v. Heaton, 1 id. 552; Aggreda v. Faulberg, 3 E. D. Smith, 178; Loyd v. Fox, 1-id. 101; Lapham v. Rice, 55 N. Y. 472 Turck v. Richmond, 13 Barb. 533; Hilliard v. Austin, 17 id. 141; Stern v. Drinker, 2 E. D. S. 401; Glass v. Keulsen, 3 Abb. 100; Walsh v. Cornett, 17 Hun, 27; Smith v. Milten, 13 How. 325; White v. Stevensen, 4 Denio, 193; Leonard v. Foster, 7 Hun, 464; Wood v. Shullis, 4 id. 309; 6 T. & C. 557; Gilmore v. Barnett, 20 Hun, 514; Birdsall v. Fuller, 11 id. 204; Lowe v. Rammell, 5 Daly, 17; Gilmore v. Jacobs, 48 Barb. 336; Webster v. Hopkins, 11 How. 140; Jaycox . Pinney, 62 Barb. 344; Bull v. Colton, 22 id. 94; Waldheim v. Sichel, 1 Hilt. 45; Wooley v. Wilber, 4 Denio, 570; Babcock. Lipe, 1 id. 139; Colvin v. Corwin, 15 Wend. 557; Tattersall v. Hass, 1 Hilt. 56; Russell v. Ruckman, 3 E. D. Smith, 419; Price v. Peters, 15 Abb. 197: Hall. Olney, 65 Barb. 27; Ryan v. Lewis. 5 T. & C. 662; 3 Hun, 429; Leonard v. Foster, 7 id. 464; Andrews v. Thorp, 1 E. D. Smith, 615; Monteith v. Cash, id, 412; McGinnis . Mayor of New York, 6 Daly, 416.

2945. Counterclaims. 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, 250 (2 Edm. 250, 251). McGenty v. Herrick, 5 Wend. 240; Chaffee v. Cox, 1 Hilt. 78; Culver v. Barney, 14 Wend. 161; Sergeant v. Holmes, 3 Johns. 428; Williams v. Bitner, 1 Lans. 200; Smith v. Burke, 10 Johns. 110; Greenleaf v. Low, 4 Den. 168; King v. Fuller, 3 Cai. 152.

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2946. Id.; where executor or trustee is a party. Sections 505 and 506 of this act apply to a counterclaim in 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.

Id., 22 55 and 56.

2947. Consequence of neglect to plead counterclaim. Where the defendant, in an action to recover damages 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 some, or any part thereof.

Id., 8 57.

But the pro

§ 2948. The last section qualified. hibition contained in the last section does 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.

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, amended; L. 1840, ch. 317 (2 Edm. 252).

2949. Judgment upon counterclaim. - 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, 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,

2. Render a judgment of discontinuance with costs; in which case, the defendant may thereafter maintain an action for the whole.

Where part of the excess is not due from the plaint iff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

Id., 28 52, 53, and part of 2 58.

§ 2950. Judgment when accounts exceed $400. —