dants say, that the plaintiff erected the house upon his said lot, and with knowledge of the course and track of the said railway as the same was in substance afterwards laid, and demised the same for a term not yet expired, for the full and fair value of the said lot; and the defendants deny that the interest of the plaintiff as reversioner is or can be injured by the said track as laid, until the expiration of his term; and until that time he is not entitled to bring his action, because, they say, that if the said location of the track, and running of the cars thereon, should, in fact, be found to be a private nuisance, the same can be, and will be altered and changed according to any such necessity.1

Ninth. The defendants deny that the only permission or authority which they ever had to lay the track on the streets of New-York, was that contained in the ordinance referred to in the complaint as copied, schedule A.

They say that their track was laid under the inspection and with the assent of the proper officers in this behalf of the city of New-York, and that the same was in substance laid down according to their right and duty in this behalf.

And they submit and insist, that the other ordinance alleged in the amended complaint, as contained in B., annexed to the complaint, as the same is therein alleged, was not binding on these defendants, nor was the same notified to these defendants by the proper officer of the said corporation, or otherwise lawfully; nor were these defendants actually at the time bound thereby.2

This is clearly irrelevant, it being the assertion of a legal proposition accompanied by an argument in support of it.

2 These allegations are of the same character as the above noted, referring to the court were conclusions of law, and are improperly inserted in the answer. An averment that a party is "bound" or "legally bound" to do a thing is the averment of a conclusion of law and is immaterial and irrelevant. Corey v. Mann, 14 How., 163; and see Plead., pp. 282–284, and cases there cited.

Last. The defendants object to the joining of the Mayor, Aldermen and Commonalty as parties to this suit, and deny that they have sustained any injury by reason of any matter alleged in the complaint.

THOMAS M. NORTH,

Defendants' Attorney.

If the complaint shows that these defendants were improperly

joined, they should have demurred.

PART II.

COMPLAINTS IN CASES DEMANDING EQUITABLE RELIEF.

(1.) IN CASES OF MISTAKE.

(No. 1.)

Against grantee, by the heirs of deceased grantor, to have a deed reformed, and a mistake in the description of the premises corrected; stated separately, by paragraphs or articles.

SUPREME COURT-RENSSELAER COUNTY.

L. M., B. G. M., and R. M., the said R. M. being an infant, by C. A. D., his guardian,'

agt.

E L. A.

The above named plaintiffs, L. M. and B. G. M., of full age, and R. M., an infant, by C. A. D., his guardian, duly

1 An infant must appear by guardian (Code, § 115), and the suit should be as above entitled, in the name of the infant, by his guardian, and not "C. A. D., guardian of R. M., an infant," &c., which would be the suit of the guardian, and not of the infant. The case of Hulbert v. Newell (4 How. Pr. R., 93), holds it unnecessary to have a guardian appointed where the infant is joined with others; but this

appointed by order of the court1 complain of the above named defendant, and state the following facts, constituting their cause of action.2

First. That said plaintiffs are the children and constitute all the heirs at law of P. M., deceased, who died on or about the intestate, leaving no widow, him surviving.

day of

Second. That at the date of the deed of conveyance hereinafter mentioned, the said P. M. was seized and possessed of the premises therein described, and other lands and premises adjoining the same, on the north boundary thereof, and situate in the town of, &c.

day of

Third. That being so seized and possessed of the whole of said premises, the said P. M. and H. M., his wife, on the executed, duly acknowledged, and delivered to the defendant a deed, with full covenants in the usual form, of a portion of said premises, by the following description: [Insert description of premises].

Fourth. That as plaintiffs are informed, and believe, the above described premises, so bounded "on the north by the

case is not in accordance with the usual practice, and cannot, perhaps, be safely followed as a precedent. (See Pleadings, pp. 90, 91.)

1 If the action is brought by a guardian, committee, receiver, &c., the complaint must show the mode of his appointment (Plead. 291, see also, 13 How., 413; 4 Abbott, 502), but it is not usual to do so where the suit is the infant's, by his guardian, and the general allegation that the action is brought by "A. B., an infant, by C. D., his guardian," is sufficient.

2 The commencement of the complaint may be in any form the pleader desires. I have usually adopted, in practice, the language of the Code, stating, as above, "the facts constituting the cause of action." (See note, ante page 2.) It is not uncommon to state the entire complaint on "information and belief," which, if the facts are not presumptively within the knowledge of the parties, may properly be done. (See Plead., 357, 358.)

creek called the Wynantskill, as it winds and turns," include three acres, or thereabouts, more land than was actually purchased by the defendant of said P. M., or was intended to be conveyed by him.

Fifth. That about two years prior to the time of said conveyance, the Wynantskill, by reason of heavy rains and freshets, suddenly changed its course from the bed or channel where it had run at that place for more than twenty years preceding, and made for itself a new channel for a considerable distance, bending northwardly from the old bed of the stream, and leaving between such new channel (where, at the date of said conveyance it ran, and still continues to run) and the bed of the old stream, about three acres of land.

Sixth. That, as plaintiffs are further informed and believe, the said defendant, at the time of his contract for said land, was informed by said P. M., and knew of such change in the course of said stream, and that he contracted to purchase, and did purchase only so much of said premises as lies southerly of the old bed of the said stream, and that said old bed of the stream was pointed out by said P. M. at the time of making the said contract of sale, and assented to by said defendant, as the northern boundary of the premises to be conveyed, and was so understood by both parties, and so intended to be conveyed.

Seventh. That said premises so intended to be conveyed, are the same premises heretofore granted by one J. A. D., to said P. M., before the change of the course of said stream, and while it ran in its former channel.

Eighth. That the conveyance from said P. M. to the defendant, is precisely the same in the description of the premises with that of the said J. A. D. to the said P. M.

Ninth. That, as plaintiffs are informed and believe, the defendant's deed of conveyance was drawn by C. B., Esq.,