on the application of the defendant, and with the consent of the plaintiff, will grant an order to stay the proceedings in all the actions but one, the defendant undertaking to be bound by the verdict in such action, and to pay the amount of their several subscriptions and costs, in case the plaintiff should recover. This mode of consolidation, however, has been held to apply only to several actions on one policy, and not extend to several policies on one risk (1 Caines R. 114).

a. Where the same defendants, in several actions for work and labor, entered into a stipulation that all proceedings should be stayed except in the action by J. D., and that the other actions should abide the final judgment in the case of J. D.,-held that J. D. having obtained final judgment against defendants, the plaintiffs in the other actions, on a reference for the purpose had to prove the amount of their claims only, and the defendants could controvert that one point only (Honlahan v. Sacketts Harbor R. R. 24 How. 155).

b. Where, in several actions, the plaintiff has regularly obtained judgment at the circuit or special term, the court has no power, on motion of the defendant, to grant an order to stay proceedings in all the actions but one, until the decision of the general term in that one, or to abide the event thereof (Toll v. Thomas, 15 How. 315).

c. A party moving to consolidate actions which are to be defended, must show by his affidavit that the questions to be tried in them will be substantially the same in all the suits (Dunn v. Mason, 7 Hill, 154). Where the affidavit was "that the defense in each and all the actions will be substantially the same," but the nature of the defense was not stated,-it was held insufficient. (ib.) And where the affidavit was made by the defendant's attorney, and he swore he had been informed by the president of the company, defendant, that there was a good defense, and that the questions were the same in each action, and gave no excuse why the president himself did not make the affidavit-Ingraham, J., denied the motion (Hone v. Farmer's B'k of Ohio, not reported).

d. The plaintiff brought at one time, and against the same defendants, a separate action in each of the counties of the State, for one and the same libel,-held, that the defendant's motion to consolidate the actions must be granted; and that the motion to consolidate was properly made in the county in which all the parties resided. The time to plead in the consolidated action in such a case, should be the time which remained in the action in the County to which the other actions were drawn by the consolidation (Percy v. Seward, 6 Abb. 326).

e. A motion to consolidate may be made by a plaintiff (Briggs v. Gaunt, 2 Abb. 77; 4 Duer, 664).

f. Where a plaintiff commenced sixty-four actions against the same defendant, all of which were at issue, and were for the recovery of separate penalties for an alleged violation of the law concerning foreign bank notes, the defendant moved to consolidate, ordered that the plaintiff should bring to trial one of the suits, which might be selected by him, and that all proceedings in the remaining suits should be staid until the trial of such selected suits, with liberty to the defendant after such trial to renew the motion for a consolidation (Clark v. Metropolitan Bank, 5 Sand. 665; and see Anderson v. Towgood, 1 Ad. & El, N. S. 245; Sorley v. Brewer, 18 How. 509).

9. Costs where, after consolidation some of the actions are discontinued (Blake v. Mich. R. R. Co. 17 How. 228).

true.

§ 168. (Am'd 1849, 1852.) Allegation not denied, deemed

Every material allegation of the complaint, not controverted by the answer, as prescribed in section 149; and every material allegation of new matter in the answer, constituting a counter

claim, not controverted by the reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.

a. Material allegation.-Only those allegations in a complaint are to be deemed material which the plaintiff must prove upon the trial in order to maintain his action (Fry v. Bennett, 5 Sand. 54; Newman v. Otto, 4 Sand, 668; Harlow v. Hamilton, 6 How. 475; Connoss v. Meir, 2 E. D. Smith, 316; Oechs v. Cook, 3 Duer, 161; Sands v. St. John, 36 Barb. 628). Every allegation is material unless it may be struck out as surplusage (Mayor of Albany v. Cunliff, 2 N. Y. 171).

b. In a complaint against several defendants for goods sold, which, after alleging the sale of the goods to the defendants, adds, "under their firm name of Cook & Son," this last allegation is descriptive only, and not necessary to be proved. The defendant, by not denying it, does not admit it (Oechs v. Cook, 3 Duer, 161). But if the complaint had alleged that the defendants composed the firm of Cook & Son, and then a sale to the firm-in that case the allegation that the defendants composed the firm of Cook & Son, would have been material. Hence "an allegation may be material in one form of constructing a complaint and immaterial in another, in declaring on the same cause of action (id.; Livingston v. Miller, 8 N. Y. 289; Hatch v. Peet, 23 Barb. 575).

c. What defendant admits by not answering.-By not answering the defendant admits the truth of all the allegations in the complaint, but not that those facts constitute a cause of action (Johnson v. Pierce, ↑ Eng. (Ark.) R. 599). A defendant who does not answer is not to be taken as admitting any thing contained in an answer of a codefendant in which he has not participated (Woodworth v. Bellows, 4 How. 24). Where there is an allegation on the complaint that the undertaking in suit was executed by defendant, and that allegation is not denied, the execution and delivery of the undertaking is admitted (Robert v. Good, 2 Trans. App. 103).

d. Effect of admissions.—-Whatever has been admitted in the pleadings cannot be contradicted in the subsequent pleadings or in the verdict (Crosbie v. Leary, 6 Bosw. 313; Thomas v. Austen, 4 Barb. 265; Johnson v. McIntosh, 31 Barb. 272; Paige v. Willett, 38 N. Y. 28); a judgment contrary to an admission in the pleading would be erroneous (Bridge v. Payson, 5 Sand. 217; see Barto v. Himrod, 8 N. Y. 483; and see 6 Johns. 543, 559, 565; 1 Barb. Ch. Pr. 339).

e. Where a party relies on the confession of his adversary, the whole matter confessed must be taken together (Dorlon v. Lewis, 6 Barb. 451; Stuart v. Kissam, 2 id. 493). An admission made in the course of a pleading is not an admission made for all the purposes of the cause (Robins v. Maidstone, 4 Q. B. 881; see, however, Hutt v. Morrell, 13 Jurist, 215; Ayres v. Covill, 18 Barb. 264; Knight v. McDowell, 12 Ad. & El. 442; Gould v. Oliver, 2 M. & G. 234; Bonzi v. Stewart, 4 M. & G. 295; Gale v. Lewis, 11 Jurist, 730; Fearn v. Filieu, 7 M. & G. 518; Carter v. James, 13 M. & W. 137). An admission, in an answer, of new matter upon which issue is taken, cannot be used on the trial as a general admission of a material fact alleged in the complaint, when there is in the same answer a general denial of all the material allegations of the complaint (Troy and Rutland R. R. Co. v. Kerr, 17 Barb. 581; Swift v. Kingsley, 24 id. 541). For the new matter pleaded in one defense does not dispense with the necessity of trying the issue formed directly upon the complaint by another defense (Vassear v. Livingston, 13 N. Y. 256; Ayres v. Covill, 18 Barb. 264).

a. No admission in a count or defense expressly abandoned by the pleader, can be used in evidence against him (Brown v. Feeter, 7 Wend. 301). And where a pleading has been amended, semble, that the original pleading cannot be read in evidence to show what the party conceived to be his right at the time such pleading was put in (Hales v. Pomfret, 1 Dan. 141). The prima facie effect of the amendment of a pleading, is an acknowledgment of the pleader that he has been mistaken, and not that he made a willful false statement in the pleading so amended (Elizabethport Manufacturing Co. v. Campbell, 13 Abb. 87; see Fielden v. Carelli, 26 How. 173; 16 Abb. 289); and semble, that facts stated in an answer held bad on demurrer, cannot be used as an admission of those facts (Firmin v. Crucifix, 5 C. &. P. 98).

b. Reading pleadings to the jury.-It rests wholly in the discretion of the court whether or not it will permit the pleadings to be read to the jury (Willis v. Forrest, 2 Duer, 310). Where plaintiff reads a portion of the answer, defendant is in entitled to have the whole answer read as evidence in his own behalf (Gildersleeve v. Mahony, 5 Duer, 383). As to reading pleadings in evidence, see Gregory v. Brunswick, 6 M. & G. 955; Jennings v. Asten, 5 Duer, 695; 3 Abb. 373; Fry v. Bennett, 3 Bosw. 200; Ames v. Hurlbut, 17 How. 185).

e. Admission by not replying.—An answer of infancy (Hodges v. Hunt, 22 Barb. 150), or the statute of limitations, is deemed controverted by this section without any reply (Esseltyn v. Weeks, 12 N. Y. 635); so of a defense of usury (Cutler v. Wright, 22 N. Y. 472). Where the defense is infancy, the plaintiff may, without replying or amending his complaint, prove the making of a new promise by the defendant, after he attained majority (Hodges v. Hunt, 22 Barb. 150). Where a conversion of personal property is set up as a counter-claim, and no reply is interposed, the amount of damages alleged in the counter-claim is not thereby admitted (McKenzie v. Farrell, 4 Bosw. 193; Stewart v. Binnse, 10 Bosw. 436).

d. Admission by demurrer.-See ante, p. 205, a.

CHAPTER VI.

Mistakes in pleading, and amendments.

SECTION 169. Material variances, how provided for.
170. Immaterial variances, how provided for.
171. What not to be deemed a variance.
172. Amendments of course and after demurrer.
173. Amendments by the court.

174. Court may give relief in case of mistake.

175. Suing a party by a fictitious name.

176. No error or defect to be regarded unless it affect substantial rights.

177. Supplemental complaint, answer, and reply.

§ 169. (Am'd 1849.) Material variance.

No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or

defense, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.

a. Affidavits.—This chapter does not apply to affidavits, so far as to authorise an amendment of the name of the court (Clickman v. Clickman, 1 N. Y. 611; but where an affidavit was defective (but not in the name of the court), the court permitted the plaintiff to amend without a motion for the purpose (Spalding v. Spalding, 3 How. 297; Donos v. Green, id. 377).

ỗ. Revised Statutes.-The provisions of the revised statutes (2 R. S. 424) are not repealed, but this chapter and the provisions of the revised statutes are to be construed together (Brown v. Babcock, 1 Code Rep. 66).

c. Corporations.-As to amendment of pleadings in actions against, see Laws 1869, ch. 157.

d. Partners. As to amendment of pleadings in actions against, see Laws 1862, ch. 476.

e. Judicial delay. It is a settled principle that suitors shall not be prejudiced by the delay of the court (Wilson v. Henderson, 15 How. 90); nor by the mistakes or misprisions of its officers; and amendments in such cases are generally matters of course (Neele v. Berryhill, 4 How. 16; Daly v. Matthews, 20 How. 267; and see note to § 384, and 2 How. 16, 17).

f. Amended pleading.-An amended pleading takes the place of and supersedes the original (4 How. 174; Fry v. Bennett, 3 Bosw. 200; Dann v. Baker, 12 How. 521; Burrall v. Moore, 5 Duer, 656; Sands v. Calkins, 30 How. 1; Walker v. Granite Bank, 1 Abb. N. S. 406). The amendment of a complaint relates back to the commencement of the action (Ward v. Kalbfleish, 21 How. 283).

g. Variance.-Sections 169 and 170 contemplate an alleged variance developed on the trial, at which time the relief in a case to which it is appropriate may at once be given, and the trial thereafter proceed upon the amended pleadings (Egert v. Wicker, 10 How. 197; Therasson v. Peterson, 22 How. 98). They have introduced a principle of determining questions of variance, not by the incoherence of the two statements upon their face, but by proof aliunde as to whether the party was actually misled to his prejudice by the incorrect statement. Whenever it is alleged that a party has been misled, that fact must be proved to the satisfaction of the court; and the proof must show in what respect he has been misled (Catlin v Gunter, 11 N. Y. 368; Deuel v. Spencer, 1 Abb. 237; Cotheal v. Talmadge, 1 E. D. Smith, 575; Cobb v. West, 4 Duer, 38). These principles extend to all actions and all cases (Catlin v. Gunter, 11 N. Y. 368; Lobdell v. Lobdell, 33 How. 347). When no proof is furnished that the party has been actually misled to his prejudice, the variance must be disregarded, and the pleadings may be amended to conform to the facts proved (Chapman v. Carolin, 3 Bosw. 456); or the trial may proceed without any amendment, whether before a judge or a referee, and the party may after the trial move at chambers for leave to amend (Lettman v. Ritz, 3 Sand. 734; De Peyster v. Wheeler, 1 Sand. 719; Harmony v. Bingham, 1 Duer, 210; Hart v. Hudson, 6 Duer, 294: Parsons v. Suydam, 3 E. D. Smith, 276; Craig v. Ward, 36 Barb. 377; Relyea v. Beaver, 34 Barb. 547); disregarding the variance is equivalent to an amendment, or the amendment may be made nunc pro tunc, on an appeal (Coleman v. Playstead, 36 Barb. 29).

h. A variance between the proofs and bill of particulars is not material, unless it mislead (Seaman v. Low, 4 Bosw. 338).

i. Where on the trial evidence is admitted of a cause of action or defense not within the pleadings, the objection to reception of such evidence must be distinctly taken at the time, or the court on appeal will deem the variance im

material, or that the pleading was treated as amended to admit such evidence (Manice v. Brady, 15 Abb. 173; Belknap v. Sealey, 14 N. Y. 143; Parsons v. Suydam, 3 E. D. Smith, 280; Rosebrooks v. Dinsmore, 5 Abb. N. S. 59).

a. Immaterial variances.-The following have been held to be immaterial variances:

b. Allegation, that work was performed by "Jones Wolcott;" proof, that it was performed by "Edwin Jones Wolcott" (Wolcott v. Meech, 22 Barb. 321). c. Allegation, that it was defendant's duty to repair a fence between plaintiff's close and between the "closes of other persons;" proof, that there was but one close between the plaintiff's and defendant's closes (Underhill v. Harlem R. R. Co. 21 Barb. 497).

d. Where two parties sued, one as executor of Keese, the other as the surviving partner of Keese, and it appeared on the trial that only the surviving partner should have sued (Keese v. Fullerton, 1 Code Rep. 52).

e. In an action by four persons as lessors, on the trial it appeared that the lease was made by those four and another named Laight, since then deceased, but that the interest of Laight survived to the plaintiffs,-held that the variance might be disregarded (De Peyster v. Wheeler, 1 Sand. 719).

f. Allegation, that defendant represented the note to be "a good note, and that it would pass in South street" proof, that he said "the note was good, and there were people in South street who would take it" (Hawkins v. Appleby, 2 Sand. 421).

g. Allegation, that goods were sold and delivered to the defendant; proof, that the goods were purchased by defendant, but delivered to a third party for his own use by order of the defendant (Kogers v. Verona, 1 Bosw. 417).

h. Allegation of delivery by plaintiff; proof of delivery by plaintiff's agent. Promise to plaintiff; proof, promise to plaintiff's agent (Richards v. Westcott, 2 Bosw. 590).

i. Allegation, note made by Orrin North; proof, that it was made by two persons trading as Orrin North (B'k of Cooperstown v. Woods, 28 N. Y. 545).

j. Allegation, promise to pay a specified compensation; proof, promise to pay what reasonably worth (Scott v. Lilienthal, 9 Bosw. 224; Patterson v. Patterson, 1 Abb. N. S. 262; Curtis v. Marshall, 8 Bosw. 22; Poirer v. Fisher, 8 Bosw. 258), and the converse (Fells v. Vestvali, 2 Keyes, 152).

k. Allegation, that $125 taken as usury; proof, that a less sum taken (Griggs v. Howe, 3 Keyes, 166).

4. Allegation of a sole liability; proof, of a joint undertaking (Carter v. Hope, 10 Barb. 180).

m. Allegation of an absolute promise; proof, of a conditional promise (Hart v. Hudson, 6 Duer. 294).

n. Allegation of notice of nonpayment; proof, of facts to excuse notice (Purchase v. Mattison, 6 Duer, 587; but see ante in note to § 162).

6. Allegation, that a note was payable" three months after date;" proof, that it was payable "four months after date" (Trowbridge v. Didier, 4 Duer, 448; and see Chapman v. Carolin, 3 Bosw. 456.

p. Allegation of bill payable to order of A; proof, of a bill payable to order of B (Farmer v. Crain, 7 Cal. R. 135; see Claflin v. Griffin, 8 Bosw. 689).

7. Allegation, that the plaintiff warranted there was a force-pump in the building, and that he removed the same; proof, that there never was a forcepump in the building (Mc Comber v. Granite Ins. Co. 15 N. Y. 495).

r. Allegation of delivery at 59 Broadway; proof, of delivery in Canal street (Neustadt v. Adams, 5 Duer, 43).

8. Allegation, that property belonged to plaintiff; proof, that he held it as a factor (Gorum v. Carey, 1 Abb. 285).

t. Allegation, that defendant was in possession of the premises in suit, in right of his wife; proof, that he was in possession in his own right (Rose v. Bell, 38 Barb. 25).

u. Allegation of the time of committing a trespass (Dubois v. Beaver, 25 N. Y. 123); or time of delivery of property (Babbett v. Young, 51 Barb. 466).