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 [Repealed 1877.]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 obje tions to the complaint; otherwise it may be disregarded. An objection, taken under subdivision first, second, fourth or eighth of section four hun. dred 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 [Repealed 1877.]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 demurrer 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 :

1. A general or specific denial of each material allegation of the complaint 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, existing 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 been assigned by the party thereto, other than a negotiable promissory note 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 became due, must be allowed as a counterclaim, to the amount of the plaintiff'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

claim; but so much of a demand existing against the person whom he rep resents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested.

§ 503. [am'd 1877.] 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 judg ment 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. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel.

§ 504. In a case not specified in the last section, where a counterclaim is established, which entitles the defendant to an affirmative judgment, de manded in the answer, judgment must be rendered for the defendant accordingly.

§ 505. In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him.

§ 506. In an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life. time; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment, only in a case where it could be issued upon a judgment, in an action against the executor or ad ministrator.

§ 507. [am'd 1879.] A defendant may set forth, in his answer, as many defences or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Each defence or counter. claim must be separately stated, and numbered. Unless it is interposed as

an answer to the entire complaint, it must distinctly refer to the cause of action which it is intended to answer.

§ 508. [am'd 1877.] A partial defence may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defence to the entire complaint, or to one or more separate causes of action, therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages, an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, is a partial defence, within the meaning of this section.

509. [am'd 1877.] 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.

§ 510. [Repealed 1877.]

§ 511. [am'd 1877 & 1879.] 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 he

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 origin-
ally 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 con-
tinue 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 plaint-
iff does not elect to continue the action, costs must be awarded, as upon
final judgment in any other case.

§ 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 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 judg

ment-roll.

§ 513. 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.

ARTICLE FOURTH.

514. Reply; what to contain.

REPLY.

quire a reply.
§ 517. Plaintiff may set forth several
avoidances in reply.

515. Judgment upon failure to reply. 516. Cases where the court may re$514. [am'd 1877.] 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.

515. 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.

§ 516. 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.

8517. [am'd 1877.] A reply may contain two or more distinct avoidances of the same defence or counterclaim; but they must be separately stated and numbered.

TITLE II.

Provisions generally applicable to pleadings.

518. Application and effect of this chapter.

519. Pleadings to be liberally con- . strued.

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.
When pleading must be verified;
and when verification may be

523.

money; how pleaded. $535. Pleadings in libel and slander. 536. Pleading mitigating circumstan ces, 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. When a pleading may be excepted
to; mode and effect of excepting.
546. Proceedings after exception.
547. [Repealed 1877.]

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.

§ 519. The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties.

§ 520. A pleading must be subscribed by the attorney for the party. 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.

§ 521. [am'd 1884.] 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 twenty days before the trial serve a copy of his answer upon the attorney for each of the defendants to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so te be affected who have not duly appeared therein by attorney. The controversy between the defendants shall not delay a judgment, to which the plaintiff is entitled, unless the court otherwise directs.

§ 522. Each material allegation of the complaint, not controverted by the answer, 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. 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.

§ 523. Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by his guardian ad liten, must also be verified. 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. A pleading cannot be used, in a criminal prosecution against the party, as proof of a fact admitted or alleged therein.

§ 524. 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