capacity, and alleged in his complaint in general terms that defendant was indebted to him for, &c., an answer denying any knowledge or information sufficient to form a belief whether he (defendant) was indebted to plaintiff, was held not to be frivolous (Morrow v. Gougan, 3 Abb. 328). And where the complaint on a promissory note in an action against the maker and payee in order to show title in the plaintiff, averred an indorsement and delivery to plaintiff, and that plaintiff was the holder, an answer which denied the delivery to the plaintiff and alleged a delivery to a third person, named, was held not to be frivolous (Metropolitan Bank v. Lord, 1 Abb. 185).

a. Frivolous demurrer.-Where in an action by a corporation the complaint averred that the plaintiffs were a corporation duly incorporated by the laws of the State of New Jersey, with power to sue and be sued, and did business in the State of New York, held that a demurrer on the ground that it appeared on the face of the complaint that plaintiffs had not legal capacity to sue was frivolous (Elizabethport Manufacturing Company v. Campbell, 13 Abb. 86).

b. Motion.—The application under this section is a motion (Roberts v. Clark, 10 How. 415; Gould v. Carpenter, 7 How. 97; Marquisee v. Brigham, 12 id. 399; Butchers' Bank v. Jackson, 22 How. 470). It is a "summary demurrer," and the opposite party may, after the notice, if the time to amend has not expired, serve an amended pleading, and such pleading served before the hearing of the motion will be an answer to it (Burrall v. Moore, 5 Duer, 654; Currie v. Baldwin, 4 Sand. 690; see ante in note to § 172). The motion must be on a notice of five days; in every case, it cannot be made on an order to show cause returnable in two days (Lefferts v. Snediker, 1 Abb. 41). There is no time limited within which it is to be made (Darrow v. Miller, 5 How. 247). The opposite party does not waive his right to move by obtaining time to answer (Cutts v. Surridge, 16 Law J. 193 Q. B.; 11 Jur. 585; 4 D. & L. 642; Norton v. McIntosh, 7 Dowl. 530); nor by answering the frivolous pleading (Stokes v. Hagar, 1 Code R. 84). The notice of motion must ask either for "judgment" or "relief;" where a notice of motion, after asking for an order to strike out an answer as frivolous, concluded by asking for such other "order," &c., it was held, that under such a notice relief could not be given (Rae v. Washington Mutual Insurance Co. 1 Code Rep. N. S. 185; Darrow v. Miller, 5 How. 247).

c. A plaintiff may, in a proper case, ask in one motion for judgment under this section and to have irrelevant and redundant matter struck out, and indefinite and uncertain allegations amended (The People v. McCumber, 18 N. Y. 315). And where the notice of motion is for judgment on the answer, containing several defenses as frivolous, or for an order striking out some or all of the defenses as sham and irrelevant, it need not necessarily specify which defenses are claimed to be frivolous, and which sham or irrelevant (Bailey v. Lane, 13 Abb. 354).

d. On motion for judgment on an answer as frivolous, it is not competent to the defendant to attack the complaint, as not stating a cause of action (Corn Exchange B'k v. W'ern Transp. Co. 15 Abb. 319 note).

e. The motion is made on the copy pleading served, and no affidavit is necessary (Stokes v. Hagar, 1 Code R. 84; Howorth v. Hubbersty, 3 Dowl. Pr. Cas. 455). The judgment must be granted or refused on what appears upon the pleadings alone, and an affidavit, if served, could not be taken into account in deciding this question (Caswell v. Bushnell, 14 Barb. 393). By this it is merely intended that no affidavit need be served with the motion papers; for if the defendant do not appear to oppose the motion, the plaintiff must give proof of the reception of the answer and of the service of the notice of motion (Darrow v. Miller, 5 How. 247).

f. Where an answer contained two defenses, and plaintiff moved for judg ment for frivolousness of answer, and one defense was held good and the other frivolous,-held that the latter defense might be stricken out under the notice that plaintiff would ask other and further relief, &c. (Hecker v. Mitchel, 5 Abb.

a. A judge at chambers has power to make an absolute or conditional order for judgment, precisely as at special term. Therefore, where it appears that the answer is put in, in good faith, and merits are properly sworn to, an amended answer may be allowed upon terms (Witherspoon v. Van Doler, 15 How. 266; and see Appleby v. Elkins, 2 Sand. 673; B'k of Lowville v. Edwards, 11 How. 218; Shearman v. N. Y. Central Mills, 1 Abb. 190; Fales v. Hicks, 12 How. 155; Fleuret v. Roget, 5 Sand. 646; Brown v. Ward, 3 Duer, 660; Marquisee v. Brigham, 12 How. 399; Witherhead v. Allen, 28 Barb. 661).

b. A frivolous pleading is not struck out (Briggs v. Bergen, 23 N. Y. 162). It should be inserted in the judgment-roll (id)

c. Decision on motion.-If judgment is ordered for the plaintiff on a frivolous answer or demurrer, and there is no other issue, the plaintiff takes judgment in same manner as though no answer or demurrer had been served (King v. Stafford, 5 How. 30; Hoffman v. Grove, 18 Abb. 14, 142; Aymer v. Chase, 1 Code Rep. N. S. 141; Saltus v. Kip, Abb. 332; 12 How. 342; 5 Duer, 646); the defendant is entitled to notice of the application for judgment (id.)

d. The decision on a motion for judgment on the ground of frivolousness of a demurrer or answer, is a judgment on an issue of law and not an order from which an appeal can be taken (Witherhead v. Allen, 28 Barb. 661; King v. Stafford, 5 How. 30; Roberts v. Morrison, 7 How. 396; Bruce v. Pinkney, 8 How. 397; Lewis v. Acker, 8 How. 414; Bauman v. N. Y. Cent. R. R. Co. 10 How. 218; Harris v. Hammond, 18 How. 123; Lee v. Ainslee, 1 Hilton, 277; see note to 252 post). If the order direct judgment for more than the plaintiff is entitled to, it should be corrected on motion, not by appeal (id.) The denial of a motion for judgment on an answer as frivolous, does not prevent a motion to strike out the answer as sham (Kreetz v. Frost, 5 Abb. N. S. 277).

e. Costs. Where an application is made under this section and judgment is ordered with costs those costs must be inserted in and be collected as part of the judgment (Wesley v. Bennet, 6 Abb. 12).

f. On denying an application for judgment under this section, only the costs of a motion can be allowed (Butchers B'k v. Jacobson, 22 How. 470); if the application is granted the successful party is entitled to a trial fee (Pratt v. Allen, 19 How. 450; Bell v. Noah, 24 How. 478; Lawrence v. Davis, 7 How. 354; Roberts v. Morrison, 7 How. 396).

g. Appeals.-To review a decision denying a motion for judgment on answer as frivolous the order is to be appealed from. To review a decision granting judgment on an answer as frivolous, the appeal should not be from the order for judgment, but from the judgment (Joannes v. Day, 3 Rob. 650); appeals from the order for judgment have been allowed and on appeal from an order rendering judgment on a demurrer as frivolous, the order will not be reversed unless the court are of opinion that the demurrer would be sustained on argument (Wesley v. Bennett, 5 Abb. 498; see Manning v. Tyler, 21 N. Y. 570; and 28 Barb. 668; 2 Abb. 327; 6 Duer, 688; Laverty v. Griswold, 12 N. Y. Leg. Obs. 316). And on an appeal from an order pronouncing an answer frivolous, if the answer does not establish a good defense the general term should sustain the order, although it may not regard the answer as frivolous (Martin v. Kanouse, 2 Abb. 328; East River B'k v. Rogers, 7 Bosw. 494).

h. On appeal from a judgment for plaintiff on account of the frivolousness of a demurrer to the complaint, the frivolousness is the only question that can be reviewed (Witherhead v. Allen, 28 Barb. 661).

i. An appeal from a judgment for the plaintiff on account of the frivolousness of the demurrer to the complaint, is not entitled to any preference on the calender (Wilder v. Lane, 34 Barb. 54).

On issues of both law and fact, the issue of law to be

251.

252.

first tried.

Trial defined.

253. Issues, how tried.

254. Issues triable by the court.

255. Issues, where to be tried.

256.

257.

Either party may give notice of trial. Note of issue.
Stenographer.

Order of disposing of issues on the calendar.

§ 248. The different kinds of issues.

Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds :

1. Of law; and

2. Of fact.

$ 249. Issue of law.

An issue of law arises,

1. Upon a demurrer to the complaint, answer, or reply, or to some part thereof.

§ 250. (Am'd 1849.) Issue of fact.

An issue of fact arises,

1. Upon a material allegation in the complaint controverted by the answer; or,

or,

2. Upon new matter in the answer controverted by the reply;

3. Upon new matter in the reply, except an issue of law is joined thereon.

$251. Issues of law and fact.

Issues both of law and of fact may arise upon different parts of the pleadings in the same action. In such cases the issues of law must be first tried, unless the court otherwise direct.

u. On demurring to one of several defenses in an answer, the plaintiff may

put the cause on the calendar for trial on the issues of fact, without waiting for the determination of the issue of law (Palmer v. Smedley, 13 Abb. 185), and where in such a case the issues of fact have been tried first without objection, it will be deemed that the court directed them so to be tried (Fry v. Bennett, 9 Abb. 45; Warner v. Wigers, 2 Sand. 635). Where there is an issue of law and an issue of fact in a cause, no judgment for costs can be entered in favor of the party who prevails on the issue of law, until the issue of fact is disposed of (Masters v. Barnard, 6 How. 114).

$252. (Am'd 1851, 1852.)

Trial defined.

A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

a. Trial.—The taking a dismissal of the complaint under sec. 258, is a trial (Dodd v. Curry, 4 How. 123). Whether the hearing of a motion for judgment on a frivolous demurrer, under section 247, is a trial (Gould v. Carpenter, 7 How. 98; Roberts v. Morrison, ib. 396; Lawrence v. Davis, ib. 354; Hull v. Smith, 8 ib. 149; Rochester City Bank v. Rapelje, 12 How. 26; Pratt v. Allen, 19 How. 450; Witherhead v. Allen, 28 Barb. 661; Butchers B'k v. Jacobson, 22 How. 470; Bell v. Noah, 24 How. 478), and whether a motion to dismiss a complaint for not proceeding with the action, is a trial (Tilspaugh v, Dick, 8 How. 33; see Place v. Butternuts Wool Co. 28 How. 184); also whether an application for judgment under section 246 is a trial,- —are questions important as regulating the amount of costs on such motions, and are considered with that view in the note to section 307, subd. 4.

b. Venue. An issue of law may be brought on to argument at a special term, held in a different county in the district, from that indicated as the place of trial in the complaint (Ward v. Davis, 6 How. 274).

253. (Am'd 1849, 1852.) Issues, how tried. Trial by jury. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived as provided in section two hundred and sixty-six, or a reference be ordered as provided in sections two hundred and seventy, and two hundred and seventy-one.

c. Trover.-An action for damages for conversion of personal property must be tried by a jury; unless a jury trial be waived (Lewis v. Varnum, 12 Abb. 305). And so of an action to recover damages or a statute penalty for creating or continuing a nuisance (Fire Department v. Harrison, 2 Hilton, 455; 9 Abb. 1; 17 How. 273; 18 How. 181).

d. Jury trial.-Where the main object of an action is the recovery of damages on a cause of action which would formerly have heen a common-law action, and equitable relief is sought merely in aid of such recovery, if necessary, the cause should be tried at the circuit, and not at a special term (N. Y. Ice Co. v. North-western Ins. Co. 10 Abb. 35; 31 Barb. 72; 20 How. 424; see Dunnell v. Keteltas, 16 Abb. 205; Greason v. Keteltas, 17 N. Y. 496). Where there is an agreement to insure and deliver a policy, and a loss occurs before

the delivery of the policy, an action on the agreement and loss is one to be tried by a jury (Rockwell v. Hartford Fire Ins. Co. 4 Abb. 179). Where the plaintiff united in one complaint a claim for damages for the improper sale of a pledge, with a claim to redeem said pledge, and the facts disclosed on the trial did not entitle plaintiff to redeem, the court ordered the issue on the claim for damages to be tried by a jury (Genet v. Howland, 30 How. 360).

a. Divorce.-In an action for a divorce on the ground of adultery in which issues are raised by the pleadings, it is not necessary to frame issues, but the issues made by the pleadings may be tried (Parker v. Parker, 3 Abb. 478).

b. Nul tiel record.—An issue of nul tiel record must be tried by a jury or be referred (Fasnacht v. Stehn, 53 Barb. 650; 5 Abb. N. S. 338).

c. Waiver.-Excepting to the findings of fact and conclusions of law is not a waiver of trial by jury (id.) see Rule 33 and § 266 post. Where the issue is such that a party is entitled on proper demand to have it tried by a jury, and he omit to claim such right he cannot afterward on appeal object to the mode of trial (Penn. Coal Co. v Del. Canal Co. 1 Keyes, 72); an objection taken on the trial of an action once begun that it should have been tried by a jury, should be overruled (McKeon v. See, 4 Rob. 450. See Bradley v. Aldrich, 40 N. Y. 504).

§ 254. (Am'd 1849.) Every other issue is

Other issues to be tried by the court. triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 270 and 271.

d. Equitable Relief.-All actions seeking equitable relief are to be tried by the court (McCarty v. Edwards, 24 How. 236; McMahon v. Allen, 10 How. 384; Church v. Freeman, 16 How. 297); as to charge the estate of a married woman (Cheesebrough v. House, 5 Duer, 125); or to set aside an assignment for fraud (Wilson v. Forsyth, 16 How. 448; Draper v. Day, 11 How. 439); or they may be referred (McCarty v. Edwards, and Allen v. McMahon, supra). The order must be made before or at the trial-not after (O'Brien v. Bowes, 4 Bosw. 658). See Rule 33.

255. (Am'd 1849, 1851, 1852.) Issues, where to be tried. All issues of fact, triable by a jury or by the court, must be tried before a single judge. Issues of fact in the supreme court, must be tried at a circuit court when the trial is by jury; otherwise, at a circuit court or special term, as the court may by its rules prescribe. Issues of law must be tried at a circuit court or special term, and shall, unless the court otherwise direct, have preference on the calendar.

e. The parties may stipulate to have the trial out of the court-house, and out of the county (Laws 1847, ch. 470).

f. An issue of law may be brought on for trial at any special term in the district within which is situated the county named in the complaint as the place of trial (Ward v. Davis, 6 How. 274).

See Supreme Court Rule 28; and as to causes on calendar, First District, see Laws 1849, p. 708.