ian, who must be a competent and responsible person, appointed upon the application of the infant, if he is of the age of fourteen years, or upwards, and applies within twenty days after personal service of the summons, or after service thereof is complete, as prescribed in section four hundred and forty-one of this act; or, if he is under that age, or neglects so to apply, upon the application of any other party to the action, or of a relative or friend of the infant. Where the application is made by a person, other than the infant, notice thereof must be given to his general or testamentary guardian, if he has one within the State; or, if he has none, to the infant himself, if he is of the age of fourteen years, or upwards, and within the State; or, if he is under that age, and within the State, to the person with whom he resides.

§ 472. The court in which the action is brought, or a judge thereof, or, if the action is brought in the supreme court, the county judge of the county where the action is triable, may appoint a guardian ad litem for ar infant, either plaintiff or defendant, as prescribed in this article. The clerk must act in that capacity for an infant defendant, where the court or the judge appoints him. No person, other than the clerk, shall be appointed a guardian ad litem, unless his written consent, duly acknowledged, is produced to the court or judge making the appointment.

§ 473. [am'd 1877, 1889.] Where an infant defendant resides out of the state or resides within the state and is temporarily absent therefrom, the court may, 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.

474. Except in case where it is otherwise specially prescribed by law, a guardian, appointed for an infant, as prescribed in this article, shall not be permitted to receive money or property of the infant, other than costs and expenses allowed to the guardian by the court, until he has given suffi cient 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.

475. The security must be a bond to the infant, in such penalty as the judge directs, not less than twice the sum, or the value of the prop erty, 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 apply for an order, directing a new bond to be given, with an increased penalty; or the court may se direct, of its own motion.

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.

§ 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 action, unless specially charged therewith by the order of the court, for personal misconduct.

CHAPTER VI.

PLEADINGS IN COURTS OF RECORD, INCLUDING COUNTER-CLAIMS.

TITLE I-THE CONSECUTIVE PLEADINGS IN AN ACTION.

§ 478. The first pleading, on the part of the plaintiff, is the complaint. $479. [am'd 1877.] If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him either within or without the State, his attorney 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.

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.

3481. 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.

$482. [am'd 1877.] In an action triable by the court, without a jury, the plaintiff may, in a proper case, demand an interlocutory judgment, and also a final judgment, distinguishing them clearly.

$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.

§ 484. [am'd 1877.] The plaintiff may unite in the same complaint, two or more causes of action, whether they are such as were formerly denominated legal or equitable, or both, where they 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.

§ 485. [Repealed 1877.]

§ 486. [Repealed 1877.]

ARTICLE SECOND.

DEMURRER.

487. Defendant must demur or answer.
488. When he may demur.
489. [Repealed 1877.]

490. Demurrer to complaint must
specify grounds of objection.
491. [Repealed 1877.]

492. Demurrer to all or part of the complaint; demurrer to part, and answer to part.

493. Defendant may demur to reply. 494. When plaintiff may demur to

answer.

§ 495. Demurrer to counterclaim, when
defendant demands an affirm-
ative judgment.

496. Demurrer to counterclaim must
specify grounds of objection.
497. Amendments in certain cases
after decision of demurrer.
498. When objection may be taken
by answer.

499. Objection; when deemed waived.

§ 487. The only pleading on the part of the defendant is either a de

murrer or an answer.

§ 488. [am'd 1877.]

The defendant may demur to the complaint where one or more of the following objections thereto appear uppon face thereof.

1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action..

3. That the plaintiff has not legal capacity to sue.

4. That there is another action pending between the same parties, fo the same cause.

5. That there is a misjoinder of parties plaintiff.

6. That there is a defect of parties, plaintiff or defendant.

7. That causes of action have been improperly united.

8. That the complaint does not state facts sufficient to constitute a cause of action.

§ 489. [Repealed 1877.]

§ 490. [am'd 1877.] The demurrer must distinctly specify the objec tions to the complaint; otherwise it may be disregarded. An objection, taken under subdivision first, second, fourth or eighth of section four hundred and eighty-eight of this act, may be stated in the language of the subdivision; an objection, taken under either of the other subdivisions, must point out specifically the particular defect relied upon.

§ 491. [Repealed 1877.]

§ 492. The defendant may demur to the whole complaint, or to one or more separate causes of action, stated therein. In the latter case, he may

answer the causes of action not demurred to.

493. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defence or counterclaim, contained in the reply, on the ground that it is insufficient in law, upon the face thereof.

§ 494. The plaintiff may demur to a counterclaim or a defence consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof.

§ 495. [am'd 1877.] The plaintiff may also demur to a counterclaim, upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counterclaim:

1. That the court has not jurisdiction of the subject thereof.

2. That the defendant has not legal capacity to recover upon the same. 3. That there is another action pending between the same parties, for the same cause.

4. That the counterclaim is not of the character specified in section five hundred and one of this act.

5. That the counterclaim does not state facts sufficient to constitute a cause of action.

§ 496. [am'd 1877.] A demurrer, taken under the last section, must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same, as where a deinurrer is taken to a complaint.

$497. [am'd 1877.] Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discre tion, allow the party in fault to plead anew or amend, upon such terms as are just. If a demurrer to a complaint is allowed, because two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated.

$498. [am'd 1877.] Where any of the matters enumerated in section four hundred and eighty-eight of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by

answer.

499. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the

jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action.

§ 500. [am'd 1877.] The answer of the defendant must contain: I. A general or specific denial of each material allegation of the com plaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief.

2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language, without repetition.

§ 501. [am'd 1877.] The counterclaim, specified in the last section, must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action:

1. A cause of action, arising out of the contract or transaction, set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action.

2. In an action on contract, any other cause of action on contract, exist ing at the commencement of the action.

§ 502. [am'd 1877.] But the counterclaim, specified in subdivision second of the last section, is subject to the following rules:

1. If the action is founded upon a contract, which has bee assigned by the party thereto, other than a negotiable promissory not or bill of exchange, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the contract be longed to him.

2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it become due, must be allowed as a counterclaim, to the amount of the plaintif's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him.

3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counter