TITLE III. Pleadings; including counter-claims, 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. Counter-claims. 2946. Id.; where executor or trustee is a party. 2947. Consequence of neglect to plead counter-claim. 2949. Judgment upon counter-claim. 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 ap plicable. 2958. Answer of title as to one of several causes of action. § 2934. 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 be fore 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 chattel or chattels, the value of which as fixed by either party in his pleadings or affidavit 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 pleadings 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 re . covered against him in the county court in the action so removed. Fro:: the time of the granting of the order the county court of Kings count has cognizance of the action, and the same shall be tried and determine 1 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 or recorded, as the case requires, in the latter office. Costs in an action s› removed shall be the same as in an original action commenced in said county court. From 2 R. S. 233, Part 3, ch. 2, tit. 4, § 47, as amended by ch. 25 of 1845 (2 Edm. 249). Am'd by ch. 380 of 1893. § 2935. Pleadings. The pleadings in a justice's court are: 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 counter-claims stated in the answer. From Co. Proc. § 64, sub. 1. See 1347, Consol. Act. § 2936. Complaint. The complaint must state in a plain and direct manner, the facts constituting the cause of action. From Id., sub. 3. See § 1347, Consol. Act. § 2937. What causes of action may be joined. The plaintiff may unite, in the same complaint, two or more causes of action, where 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 same 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. See § 1347, Consol. Act. § 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 master, constituting one or more defenses or counter-claims. From Co. Proc. § 64, sub. 4. § 2939. Demurrer. In a case specified in subdivision third and 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 counter-claim, 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. From Id., subs. 6 and 7. § 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 docket-book; 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., subs. 2 and 5. Sce § 2877. See also § 1347, Consol. Act. As to verification of pleadings in justices' courts, see ch. 414 of 1881. § 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. From Id., sub. 9. See § 1347, Consol. Act. § 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. From Id., sub. 14. See 1347, Consol. Act. § 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. From Id., sub. 10. See § 1347, Consol. Act. § 2944. Amendment of pleadings. The court must, 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 also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party. From Id., sub. 11. See §§ 724, 727, 728, 729, 730, 3347. § 2945. Counter-claims. Sections 501 and 502 of this act apply to a counter-claim in an action brought in a justice's court; except that such a counter-claim cannot be interposed, unless it is of such a nature, that a justices' court has jurisdiction of a cause of action founded thereon. From 2 R. S. 234, Part 3, ch. 2, tit. 4, § 50 (2 Edm. 250, 251). § 2946. Id.; where executor or trustee is a party. Sections 505 and 506 of this act apply to a counter-claim in an action against a person sued in a representative capacity, or in favor of an executor or administrator, except that the defendant cannot take judgment against the plaintiff upon a counter-claim, for a sum exceeding two hundred dollars. From Id., §§ 55 and 56. § 2947. Consequence of neglect to plead counter-claim. Where the defendant, in an action to recover damages upon or for breach of a contract, neglects to interpose a counter-claim, consisting of a cause of action in his favor to recover damages for a like cause, which might have been allowed to him upon the trial of the action, he, and every person deriving title thereto through or from him, are forever thereafter precluded from maintaining an action to recover the same, or any part thereof. From Id., § 57 § 2948. The last section qualified. But the prohibition contained in the last section does not extend to either of the following cases: 1. Where the amount of the counter-claim is two hundred dollars more than the judgment which the plaintiff recovers. 2. Where the counter-claim consists of a judgment, rendered before the commencement of the action, in which it might have been interposed. 3. Where the counter-claim consists of a claim for unliquidated damages. 4. Where the counter-claim consists of a claim, upon which another action was pending, at the time when the action was commenced. 5. Where judgment is taken against the defendant, without personal service of the summons upon him, or an appearance by him. From Id., § 58, as amended by ch. 317 of 1840 (2 Edm. 252). § 2949. Judgment upon counter-claim. Where a counter-claim 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 judgment 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, unless it is more than the sum of two hundred dollars. If it is more than two hundred dollars, or if no part of it is due from the plaintiff, the justice must, at the election of the defendant, either: 1. Set-off so much of the counterclaim as is sufficient to satisfy the plaintiff's demand, and render judgment for the defendant for his costs; in which case, the defendant may maintain an action for the residue; or, 2. Render a judgment of discontinuance with costs; in which case, the defendant may thereafter maintain an action for the whole. 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. From Id., §§ 52 and 53 and sub. 3 of § 58. § 2950. Judgment when accounts exceed $400. Where, upon the trial of an action, the sum total of the accounts of both parties, proved to the satisfaction of the justice, exceeds four hundred dollars, judgment of discontinuance must be rendered against the plaintiff, with costs. From Id., § 54 § 2951. Answer of title. The defendant may, either with or without other matter of defence, set forth in his answer facts, showing that the title to real property will come in question. Such an answer must be in writing; and it must be signed by the defendant, or his attorney or agent, and delivered to the justice. The justice must, thereupon, countersign the answer, and deliver it to the plaintiff. From Co. Proc. § 55 See 1349, Consol. Act. § 2952. Undertaking thereupon. In the case specified in the last section, the defendant must also deliver to the justice, with the answer, a written undertaking, executed by one or more sureties. approved by the justice; to the effect that, if the plaintiff within twenty days thereafter, deposits with the justice a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the justice, the undertaking must further provide, that he will, at all times. render himself amenable to any mandate, which may be issued to enforce a final judgment in the action so to be brought. If the defendant fails to comply with the undertaking. the sureties are liable thereupon, to an amount not exceeding two hundred dollars. From Co. Proc. part of § 56. See 1350, Consol. Act. § 2953. In what court new action to be brought. The court in which a new action is to be brought, as prescribed in the last section. is the supreme court. or the county court of the justice's county, at the plaintiff's election: except that, where the justice is a justice of the peace of the city of Buffalo, it is the superior court of Buffalo. From Id., and ch. 96 of 1854. § 12. See 1351, Consol. Act. § 2954. When action before justice to be discontinued. Upon the delivery of the undertaking to the justice, the action before him is discontinued and each party must pay his own costs. The costs so paid by either party must e allowed to him, if he recovers costs in the new action, to be brought as prescribed in the last two sections. If the plaintiff fails to deposit with the justice a summons and complaint in the new action, before the expiration of twenty days after the |