Γ mand affirmative judgment.—Where the defendant deems himself entitled to an affirmative judgment against the plaintiff, by reason of a counterclaim interposed by him, he must demand the judgment in his answer. New. See 2504, ante. § 510. [Stricken out in 1877.] § 511. [Amended, 1879.] When pleadings admit part of plaintiff's claim. Where the answer of the defendant, expressly or by not denying, admits a part of the plaintiff's claim to be. just, the court, upon the plaintiff's motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and if the plaintiff so 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 for only 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. Substitute for concluding paragraph of ? 244, Co. Proc. - 512. Judgment, where counterclaim only is interposed for less than plaintiff's claim. 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 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. Co. Proc., part of § 246, am'd. 513. Dilatory defences to be verified. A defence which does not involve the merits of the action, shall not be pleaded, unless it is verified as prescribed in title second of this chapter. From 2 R. S. 352, 27 (2 Elm. 364). ARTICLE FOURTH. REPLY. SEC. 514. Reply; what to contain. 515. Judgment upon fallure to reply. 516. Cases where the court may require a reply. 517. Plaintiff may set forth several avoidances in reply. § 514. [Amended, 1877.] Reply; what to contain. -Where the answer contains a counterclaim, the plaintiff, if he does not demur, may reply to the counterclaim. 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. Co. Proc., part of 153. Leslie v. Leslie, 11 Abb. N. S. 311; Luding ton v. Slauson, 38 N. Y. Supr. 81; Jarvis v. Pike, 11 Abb. N. S. 398; Williams v. Willis, 15 id. 11; Thomas v. Loaners' Bank, 38 N. Y. Supr. 466. See also, 22 How. 240; 7 id. 121; 9 Abb. 39; 10 Bosw. 143; 1 Abb. N. S. 1; 3 Code Rep. 215. § 515. Judgment upon failure to reply. If the plaintiff fails to reply or demur to the counterclaim, the defendant may apply, upon notice, for judgment thereupon; 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. Id., 154, am'd. See post, 1219. Bridge v. Payson, 5 Sandf. 210; Aymar v. Chace, 12 Barb. 301; Bates v. Rosekrans, 37 N. Y. 409; McKen zie v. Farrell, 4 Bosw. 192; Lawrence v. Bank, 3 Rob. 142. 516. Cases where the court may require a reply. Where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the 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. Id., concluding paragraph of 153. Hubbell v. Fowler, 1 Abb. N. 8. 1; Jarvis v. Pike, 11 id. 399. 517. [Amended, 1877.] Plaintiff may set forth several avoidances in reply.-A reply may contain two or more distinct avoidances of the same defence of counterclaim; but they must be separately stated and numbered. New. TITLE II. Provisions generally applicable to pleadings. BEC. 518. Application and effect of this chapter. 519. Pleadings to be liberally construed. 32. 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. 323. 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 afidavit 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. 532. Judgment; how pleaded. Bill of particulars. 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. 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 fallure of proof. 542. Amendments of course. 543. Amended pleading to be served; answer thereto. 545. Motion to strike out irrelevant, etc., matter. 546. Indefinite or uncertain allegations. § 518. Application and effect of this chapter.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. Substitute for Co. Proc., § 140. § 519. Pleadings to be liberally construed. — The allegations of a pleading must be liberally construed, with a view to substantial justice between the par. ties. Co. Proc.. 159. Powers v. Rome, etc., R. R. Co., 5 T. & C. 449; s. c., 8 Hun, 285; Ryle v. Harrington, 4 Abb. 421; Clare v. Nat. City Bank, 14 Abb. N. S. 325; 25 N. Y. Supr. 261; DeGrove v. Metropolitan Ins. Co., 61 N. Y. 594, 605; Page v. Boyd, 11 How. 415; Alfaro v. Davidson, 40 N. Y. Supr. 87; Hatch v. Peet, 23 Barb. 575; Graves r. Waite, 59 N. Y. 156; Hackford v. N. Y. C. R. R. Co., 6 Lans. 381; Hofheimer v. Campbell, 59 N. Y. 269; s. c., 7 Lans. 157; Ayers v. Lawrence, 59 N. Y. 192, 201; Spear v. Downing, 34 Barb. 523; s. c., 12 Abb. 437: Gould r. Glass, 19 Barb. 185; Munger v. Hess, 23 id. 75; Cruger v. Hudson River R. R. Co., 12 id. 201; Woodbury v. Sackrider, 2 Abb. 405; Mann v. Morewood, 5 Sandf. 557. See Wait's and Voorhies' Code, § 159, and cases there cited. $520. Pleadings to be subscribed; within what time to be served.—A pleading must be subscribed by the attorney for the party. (1) A copy of each pleading, subsequent to the complaint, must be served on the attorney for the adverse party, within twenty days after service of a copy of the preceding pleading.(2) (1) Part of Co. Proc., 156. See ante, 55. Hubbell v. Livingston, 1 Code Rep. 63; Weir v. Slocum, 3 How. 397; Ehle v. Huller, 10 Abb. 287; 6 Bosw. 661; Anable v. Anable, 24 How. 92; Hill v. Thacter, 3 id. 407. (2) New. 521. When defendant to serve copy answer on co-defendant. Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defendant, who requires such a determination, must demand it in his answer, and 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 1204, post. See Kay v. Whittaker, 44 N. Y. 565, 576; Getty v. Donnelly, 9 Hun, 603; Garnsey e. Knights, 1 T. & C. 259; Newman e. Dickson, 1 Abb. N. C. 307; Smart v. Bement, 4 Abb. App. Dec. 253. § 522. Allegation not denied; when to be deemed true. Each material allegation(1) of the complaint, not controverted by the answer, (2) and each material allegation of new matter in the answer, not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true.(3) But an allega tion 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.(4) Co. Proc., 168. (1) Fry v. Bennett, 5 Sandf. 54; Newman v. Otto 10 N. Y. Leg. Obs. 14; s. c., 4 Sandf. 668; Connoss v. Meir, 2 E. D. Smith, 314: Sands r. St. John, 36 Barb. 628; Barton v. Sackett, 3 How. 357; Mayor, etc., of Albany v. Cunliff, 2 N. Y. 171; Livingston v. Miller, 8 id. 283. (2) Darling v. Brewster, 55 N. Y. 667; Woodworth v. Bellows, 4 How. 24; Simmons v. Law, 3 Keyes, 217; s. c., 8 Bosw. 213; Robert v. Good, 2 Trans. App. 103; Spear v. Hart, 3 Rob. 420. (3) Bates. Rosekrans, 37 N. Y. 409; s. c., 4 Abb. N. S. 276: Isham v. Davidson, 52 N. Y. 237, 239; Cutler v. Wright, 22 N. Y. 472, 478; Hodges v. Hant, 22 Barb. 150; Esselstyn v. Weeks, 2 Abb. 272; 12 N. Y. 635; McKensie r. Farrell, 4 Bosw. 193; Stuart v. Binsse, 10 id. 436. (4) Cutler E. Wright, 22 N. Y. 472. See Esselstyne v. Weeks, 12 1d. 635; Hodge . Hunt, 22 Barb. 150; Dambman v. Schulting, 6 T. & C. 251; s. c., 4 Hun, 50. § 523. When pleading must be verified; and when verification may be omitted. · Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified.(1) But the verification may be 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.(2) A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein. (3) (1) Co. Proc., part of 156, am'd. Sexaner v. Bowen, 10 Abb. N. S. 335; 3 Daly, 405: Stront v. Curran, 7 How. 36; Hempstead r. Hempstead, id. 8; Levi. Jakeways, 4 id. 126; White v. Bennett, 7 id. 59; George r. McAvoy, 614, 200; Hull v. Ball, 14 id. 305; White . Cummings, 3 Sandf. 716; Moloney v. Dows, 2 Hilt. 247; Quin e. Tilton, 2 Duer, 648; Graham r. McCoun, 5 How. 353; Wilkin v. Gilman, 13 id. 225; Trowbridge v. Didier, 4 Duer, 450; Hughes v. Wood, 5 id. 603, n. (2) See L. 1854, ch. 75; Fredericks . Taylor, 52 N. Y. 596; 14 Abb. N. S. 77; Anable r. Anable, 24 How. 92; Wheeler v. Dixon, 14 id. 151; Scovill v. New, 12 id. 319; Lynch . Todd, 13 ld. 546; Thomas v. Harrop, 7 id. 57; Blaisdell v. Raymond, 5 Abb. 144; Wolcott v. Winston, 8 id. 422; Olney v. Olney, 7 id. 330; Springsted . Robinson, 8 How. 41: Sweet r. Sweet, 15 id. 169; Moloney r. Dows, 2 Hilt. 247; Clapper v. Fitzpatrick, 3 How. 314; Byass e. Smith, 4 Bosw. 679; Henry v. Salina Bank, 1 N. Y. 86; Re Hockley, 24 id. 74; People v. Gay, 7 id. 382; People v. Kelly, 24 How. 369. (3) Co Proc., part of 157. 524. Form and construction of certain allegations and denials in verified pleading. The allegations or denials in a verified pleading must, in form, be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes, including a 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 re |