CHAPTER VI. Pleadings in courts of record, including counter-claims. TITLE I.-The consecutive pleadings in an action. TITLE I. The consecutive pleadings in an action. ARTICLE 1. Complaint. 2. Demurrer. 3. Answer. 4. Reply. ARTICLE FIRST. Complaint. SEC. 478. First pleading to be complaint. 479. Copy complaint, when to be served. 481. Complaint; what to contain. 482. When interlocutory and final judgment may be demanded. 483. Causes of action to be separately stated. 484. What causes of action may be joined in the same complaint. 485. When cause of action deemed single. [Repealed.] 486. When alternative legal or equitable judgment may be demanded. [Re pealed.] § 478. First pleading to be complaint. The first pleading, on the part of the plaintiff, is the complaint. § 479. Copy complaint, when to be served. 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. From Co. Proc. § 130. Am'd by ch. 416 of 1877. See § 824. § 480. Consequence of failure. 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. See 821, 822. § 481. Complaint; what to contain. 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 clear, precise and unequivocal statement of the facts, constituting each cause of action. 3. A demand of the judgment to which the plaintiff supposes himself entitled. § 482. When interlocutory and final judgment may be demanded. 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. Am'd by ch. 416 of 1877. See 1200. § 483. Causes of action to be separately stated. 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. From Co. Proc. § 167. § 484. What causes of action may be joined in the same complaint. 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. 10. For penalties incurred under the fisheries, game and forest law. 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. From Co. Proc. § 167. Am'd by ch. 416 of 1877 and ch. 590 of 1900. § 485. What cause of action deemed single. Repealed by ch. 416 of 1877. § 486. When alternative legal or equitable judgment may be demanded. Repealed by ch. 416 of 1877. ARTICLE SECOND. Demurrer. Szc. 487. Defendant must demur or answer. 488. When he may demur. 489. The last section qualified. [Repealed.] 490. Demurrer to complaint must specify grounds of objection. 491. Rule, if too many grounds of objection are specified. [Repealed.] 492. Demurrer to all or part of the complaint; demurrer to part, and an swer to part. 493. Defendant may demur to reply. 494. When plaintiff may demur to answer. 495. Demurrer to counter-claim, when defendant demands an affirmative judgment. 496. Demurrer to counter-claim 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. Defendant must demur or answer. The only pleading on the part of the defendant is either a demurrer or an answer. From Co. Proc. § 143. See § 520. § 488. When he may demur. The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the 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, for 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. From Co. Proc. § 144. Am'd by ch. 416 of 1877. § 489. The last section qualified. Repealed by ch. 416 of 1877. 8 490. Demurrer to complaint must specify grounds of objection. The demurrer must distinctly specify the objections 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. From Co. Proc. § 145. Am'd by ch. 416 of 1877. § 491. Rule if too many grounds of objection are specified. Repealed by ch. 416 of 1877. § 492. Demurrer to all or part of the complaint; demurrer to part, and answer to part. 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. From Co. Proc. §§ 145 and 151. § 493. Defendant may demur to reply. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defence or counter-claim, contained in the reply, on the ground that it is insufficient in law, upon the face thereof. From Co. Proc. § 155. § 494. When plaintiff may demur to answer. The plaintiff may demur to a counter-claim or a defence consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof. From Co. Proc. § 153. § 495. Demurrer to counter-claim, when defendant demands an affirmative judgment. The plaintiff may also demur to a counter-claim, upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counter-claim: 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 counter-claim is not of the character specified in section 501 of this act. 5. That the counter-claim does not state facts sufficient to constitute a cause of action. Am'd by ch. 416 of 1877. See § 509. § 496. Demurrer to counter-claim must specify grounds of objection. A demurrer, taken under the last section, must distinctly specify the objections to the counter-claim; otherwise it may be disregarded. The mode of specifying the objections is the same, as where a demurrer is taken to a complaint. Am'd by ch. 416 of 1877. § 497. Amendments in certain cases after decision of de murrer. Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discretion, 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. From Co. Proc. § 172. Am'd by ch. 416 of 1877. |