TITLE III. Pleadings; including counterclaims, and proceedings upon answer of title. 2937. What causes of action may be joined 2938. Answer. 2939. Demurrer. 2940. General rules of pleading. 2941. Account, or instrument for payment of money. 2942. Court may require items to be exhibited. 2943. Immaterial variance to be disregarded. 2944. Amendment of pleadings. 2945. Counterclaims. 2946. Id.; where executor or trustee is a party. 2947. Consequence of neglect to plead counterclaim. 2949. Judgment upon counterclaim. 2950. Judgment when accounts exceed $400. 2951. Answer of title. 2952. Undertaking thereupon. 2953. In what court new action to be brought. 2954. When action before justice to be discontinued. 2955. Effect of failure to give undertaking. 2956. When title comes in question on plaintiff's own showing. 2957. Pleadings in new action. Undertaking before justice, when applicable. 2958. Answer of title as to one of several causes of action, $2934. [Amended, 1893.] When issue to be joined.-At the place, and within one hour after the time, specified in the summons for the return thereof; or, where an order of arrest is granted and executed, within twelve hours after the defendant is brought before the justice; or, where no summons is issued, at the time when the parties voluntarily appear to join issue, the pleadings of the parties must be made, and issue must be joined. Where both parties appear upon the return of the summons, an issue must be joined before an adjournment is had, except when the defendant refuses or neglects to plead. Where an issue of fact or an issue of law is joined in a justice's court, or before a justice of the peace in the city of Brooklyn, or in any of the towns in the county of Kings, in which the judgment demanded by either party in his pleadings exceeds the sum of one hundred dollars; or, when in an action to recover a chatte! or chattels, the value of which as fixed by either party in his pleadings or affidavits exceeds one hundred dollars, the defendant may, after issue joined and before an adjournment is granted upon his application, apply to the justice before whom the action is brought for an order removing the action into the county court of the county of Kings. Such an order must be granted upon the defendant filing with the justice an undertaking in a sum fixed by the justice, not exceeding twice the amount of the damages claimed or twice the value of the chattel or of all the chattels claimed, as stated in the pleading or affidavits, with one or more sureties, approved by the justice, to the effect that the defendant will pay to the plaintiff the amount of any judgment, including costs, that may be recovered against him in the county court in the ac tion so removed. From the time of the granting of the order the county court of Kings county has cognizance of the action, and the same shall be tried and determined by said county court as if originally brought therein. The justice must forthwith deliver to the clerk of the county court all processes, pleadings and other papers in the action which must be filed, entered and recorded, as the case requires, in the latter office. Costs in an action so removed shall be the same as in an original action commenced in said county Court. Took effect April 13, 1893; Laws 1853, ch. 380. § 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 Proc., 8 64, subd. 1. Schoonmaker v. Spenser, 54 N. Y. 366; Ross v. Hamilton, 3 Barb. 609; Willard v. Bridge, 3 id. 361; Ressequie Bronson, id. 541; Smith v. Mitten, 13 How. 325; Hubbell v. Clark, I 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 v. 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 sa ne 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; Ifall v. McKechnie, 22 id. 244; Osburne v. Gilbert, 52 id. 158; Ross . Hamilton, 3 id. 609; Conklin v. Field, 37 How. 455; Hodges v. Hunt, 22 Barb. 150; Wilcox v. Palmeter, 2 Hun, 517; Pentield v. Jacobs, 21 Barb. 335; Cohen v. Dupont, 1 Sandf. 260; Ingals . Sprague, 10 Wend. 672; Overseers of Stephentown . 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; Shan non v. Comstock, 21 Wend. 457; Avery v. Slack, 17 id. 85; Dennison v. Carnahan, I 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; Hali v. McKechnie, 22 Barb. 244; Rice v. Hallenbeck, 19 id. 664; Tripp v. Riley, 15 i. 333; Lampman v. Rice, 63 id. 485; Van Hoesen . Van Alstyne, 3 Wend. 75; Hillard v. Austin, 17 Barb. 141; Turck v. Richmond, 13 id. 533; Glass . 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. ! Id., subd. 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 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. § 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 v. 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. Traffarn, 12 Abb. 52. The court must, 2944. Amendment of pleadings. 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 |