performance on his part. Smith v. Betts, 16 How. 251. Where the non-performance of a condition precedent is occasioned by the act of a party, either disqualifying him for performing, or by his giving notice that he will not perform, the party seeking a remedy need not aver performance, or readiness to perform on his part, but should allege such facts as show his excuse. Clarke v. Crandall, 27 Barb. 73; Garvey v. Fowler, 4 Sandf. 665; S. C. 10 N. Y. Leg. Obs. 16; Crist v. Armour, 34 Barb. 378; Clark v. Crandall, 3 id. 612; Rivara v. Ghio, 3 E. D. Smith, 264. The owner of sheep, killed by dogs, may bring an action therefor, against the owner of the dogs, without previously applying to the fence viewers. Fish v. Skut, 21 Barb. 334. An averment of performance will not admit evidence in excuse of non-performance. Hosley v. Black, 26 How. 97; S. C. 28 N. Y. (I Tiff.), 438. Profert and oyer.-The Code dispenses with the former rules, relative to profert and oyer. Mayor, etc. of New York v. Doody, 4 Abb. 127; Welles v. Webster, 9 How. 251. As to executors, etc., see Bright v. Currie, 5 Sandf. 433; S. C. 10 N. Y. Leg. Obs. 104. Reasonable time.-Where no time is fixed by agreement, for the performance of a duty, it is to be done within a reasonable time. Thomas v. Dickinson, 12 N. Y. (2 Kern.), 364; Rev'g. S. C. 14 Barb. 90. So`a contract to do as soon as possible, means a reasonable time. Atwood v. Emery, 1 Com. B. N. S. 110; 87 Eng. C. L. R. 108. Reasonable time is a question of fact for the jury. Pattershall v. Tranter, 3 Ad. & E. 103; Fielder v. Starkin, 1 H. Black, 17. But where the agreement itself, when fairly construed, settles the time at which the option is to be determined, it then becomes a question of law for the court. Sage v. Hazard, 6 Barb. 179; Nelson v. Patrick, 2 C. & K. 641; contra, Chitty on Bills, 412, 8th ed. See Bain v. Case, 3 Car. & P. 496. Where a statute required a reasonable notice of not less than ten days, an averment that the defendants did, pursuant to statute, give the plaintiff reasonable notice, was held insufficient, on the ground that it did not state that the notice was not less than ten days. Cruger v. Hudson River R. R. Co. 12 N. Y. (2 Kern.), 190. "What is a reasonable period, must depend upon the actual circumstances existing at the time." Wibert v. New York & Erie R. R. Co. 12 N. Y. (2 Kern.), 245; Aff'g S. C. 19 Barb. 36. A reasonable time is such a period as would be required by persons of ordinary business talents to accomplish the duties which the respective parties had to perform. Smedberg v. More, 26 Wend. 238; Aff'g S. C. 8 Paige, 604, sub nom. More v. Smedburg. See Hoggins v. Becroft, 1 Dana (Ken.), 28; Shepherd v. Scroggin, 3 id. 62; Muir v. Louisville & Portland Canal, 8 id. 161; Murray v. Smith, 1 Hawks, 41; Bell v. Beveridge, 4° Dal. 272; Duncan v. Kock, Wallace's C. C. R. 39; Harton v. Phonix Ins. Co. MSS.; Wharton's Dig. 332; White v. Kyle's Lessee, 1 Serg. & R. 520. | Defects cured by answer.-Where the complaint for rent was defective in not averring an entry on the premises by defendant, and the answer set forth occupation thereof, held, that the defendant, by thus voluntarily showing the fact of occupation, had supplied the deficiency of the complaint. Vernam v. Smith, 15 N. Y. (1 Smith), 327. Where a complaint to set aside an assignment was defective in omitting to aver that the defendant insisted that the assignment was not executed with fraudulent intent, an answer in which the defendants denied that it was fraudulently executed, was held to supply the defect. Bate v. Graham, 11 N. Y. (1 Kern.), 237; Hyde v. Watts, 12 M. & W. 254. Where the answer contains several defenses, one of which contains an admission which supplies a defect in the complaint, that does not make the complaint sufficient as to the other defenses not containing such admission. Ayres v. Covill, 18 Barb. 260. See Swift v. Kingsley, 24 Barb. 541. It does not follow that because a complaint is defective in some particulars, that no cause of action is shown. After issue has been taken by the answer upon the facts alleged in the complaint, and new matter has been set up by way of defense, the objection cannot be taken by motion to dismiss the complaint. Clark v. Crego, 47 Barb. 599. cured by verdict.-See Steph. Pl. 148. Cured by verdict means, that after verdict the court will presume that the particular thing required to sustain it was proved at the trial. Merrick v. Trustee, etc., 8 Gill. 59. But the court will not presume a cause of action, after verdict, where none appears on the pleading Smith v. Wright, 27 Barb. 621; Rev'g S. C. 24 id. 170; 12 How. 555. The facts which will be presumed to have been proved are those which, though entirely omitted in the complaint, are so connected with the facts alleged that the latter cannot be proved without proving the facts not alleged. Addington v. Allen, 11 Wend. 374; Rev'g S. C. 7 id. 9; sub nom. Allen v. Addington. See Barnes v. Harris, 3 Barb. 603; S. C. Aff'd, 4 N. Y. (4 Comst.) 374; People v. Warner, 4 Barb. 314; 1 Saund. 228 a, n, f; Brown v. Harmon, 21 Barb. 508; Clark v. Dales, 20 id. 42, (66); Carpenter v. Brown, 6 id. 147. Where a complaint for the conversion of a note contained an express averment of property in the plaintiff, but stated nothing further to show that he was entitled to it, it was held sufficient after verdict. Decker v. Mathews, 12 N. Y. (2 Kern.), 313, (321); Aff'g S. C. 5 Sandf. 439; Harris v. Goodwyn, 2 Man. & Grang. 405; 2 Scott N. R. 459; 9 Dowl. 423; Ladd v. Thomas, 12 Adol. & El. 117. And an answer to a complaint, on a bill of exchange, by the in dorsee, which averred that the defendant (the indorser) indorsed without receiving any valu or consideration whatever, was held too indefi nite, but good after verdict. Easton v. Pratchett, 4 Tyrw. 472; 1 C. M. & R. 798; 6 C. & P. 736; 1 Gale, 30. § 142.] nom. THE COMPLAINT. IX. NOTES UNDER SUBDIVISION 3. Different kinds of relief.-Claims both for legal and equitable relief may be united in one action. Getty v. Hudson River R. R. Co. 6 How. 269; S. C. 10 N. Y. Leg. Obs. 85; New York Ice Co. v. Northwestern Insurance Co. 23 N. Y. (9 Smith), 357; S. C. 12 Abb. 414; 21 How. 296. See also S. C. 11 Abb. 419; 32 Barb. 534; 20 How. 255. See Bidwell v. Astor Mutual Insurance Co. 16 N. Y. (2 Smith), 263; Gooding v. M'Alister, 9 How. 123; Lamoreux v. Atlantic Mutual Insurance Co. 3 Duer, 680; Wandle v. Turney, 5 id. 661. Where they are not inconsistent with each other. Linden v. Fritz, 3 Code R. 165; S. C. 3 Sandf. 668, sub Linden v. Hepburn; 5 How. 188; 9 N. Y. Leg. Obs. 80, sub nom. Hepburn v. Linden; Young v. Edwards, 11 How. 201; Trull v. Granger, 8 N. Y. 4 (Seld.), 115. To demand judgment of forfeiture of a lease, and that defendant be restrained, by injunction, from repairing the demised premises, is inconsistent. Linden v. Fritz, supra. And so of a demand for relief and a demand of judgment for a specific sum. Durant v. Gardner, 10 Abb. 445; S. C. 19 How. 94. Alternative equitable relief may be prayed for, and obtained now as heretofore. Linden v. Fritz, supra; Young v. EdMayor, But see Warwick v. wards, supra. etc. of New York, 7 Abb. 266; 28 Barb. 210; 16 How, 357. But it is improper to unite in one complaint prayers for relief against the defendant, individually, and in his capacity as executor. McMahon v. Allen, 1 Hilt. 103; S. C. 3 Abb. 89; Aff' g S. C. 12 How. 39. An objection to the relief prayed, should be taken by motion. Durant v. Gardner, 10 Abb. 445; S. C. 19 How. 94; Ricart v. Townsend, 6 id. 460, 463; Moses v. Walker, 2 Hilt. 536; Anonymous, .11 Abb. 231; S. C. sub nom. Walton v. Walton, 32 Barb. 203; 20 How. 347. And see People ex rel. Taylor v. Mayor, etc. of New York, 8 Abb. 7, (19); S. C. 28 Barb. 240; 17 How. 56; S. C. Rev'd, 10 Abb. 111; Redmond v. Dana, 3 Bosw. 616; Andrews v. Shaffer, 12 How. 441. The plaintiff may demand any kind of relief to which he supposes himself entitled, and he is not confined The defendant has to one kind of relief. nothing to do with the form of the relief demanded. Hall v. Hall, 38 How. 97. But a prayer for damages, exclusively, prevents a judgment for specific performance, notwithstanding the complaint contains facts sufficient to warrant it. Ryder v. Jenny, 2 Rob. 56, (65.) A complaint which claims not only damages for the conversion of property, but also a re-delivery of it to the plaintiff, is bad on demurrer. Maxwell v. Farnam, 7 How. 236. Where the complaint upon a policy of insurance contained a prayer that "if the same for Objection. An objection to the relief demanded must be taken by motion. Durant v. Gardner, 10 Abb. 445; S. C. 19 How. 94; Ricard v. Townsend, 6 How. 460, 462; Moses v. Walker, 2 Hilt. 536; Anonymous, 11 Abb. 23; S. C. 32 Barb. 203, sub nom. Walton v. Walton; 20 How. 347. And see People ex rel. Taylor v. Mayor, etc. of New York, 8 Abb. 7; S. C. 28 Barb. 240; 17 How. 56; S. C. Rev'd, 10 Abb. 111; Redmond v. Dana, 3 Bosw. 615; Andrews v. Shaffer, 12 How. 441. SECTION 143. CHAPTER II. The Demurrer. Defendant to demur or answer. 144. When the defendant may demur. 145. Demurrer must specify grounds of objection to complaint. 146. How to proceed if complaint be amended. 147. Objection not appearing on complaint, may be taken by answer. 148. Objection; when deemed waived. § 143. [121.] Defendant to demur or answer. The only pleading on the part of the defendant, is either a demurrer or It must be served within twenty days after the service of the an answer. copy of the complaint. 1. EXTENDING TIME TO ANSWER OR DEMUR. a. How time extended, etc. An answer served before receiving a copy of the complaint, is irregular. Philips v. Prescott, 9 How. 430. An enlargement of time to answer a demurrer, can only be procured by consent, or by an order, founded on an affidavit of merits. Platt v. Townsend, 3 Abb. 9; S. C. 5 Duer, 668. McGown v. Leavenworth, 2 E. D. Smith, 24. An order extending time to answer, also extends time to demur. Broadhead v. Broadhead, 4 How. 308; S. C. 3 Code R. 8. To the contrary. Davenport v. Sniffin, 1 Barb. 223. See also Kelly v. Downing, 42 N. Y. (3 Hand), 77. After a party's time to answer has expired, his proper course is to move to be relieved from default, and to be allowed to answer. Petrie v. Fitzgerald, 2 Abb. N. S. 354. b. Affidavit of merits An enlargement of time to answer or demur, not supported by an affidavit of merits, nor by an affidavit of the attorney or counsel retained to defend; that from the statement of the case, made to him, by the defendant, he verily believes that the defendant has a good and substantial defense, on the merits, to the cause of action, as set forth in the complaint, or to some part thereof, may be disregarded. So, if an enlargement of time has been obtained by order, or by consent of parties, that fact must be stated in the affidavit. Rule 30. This rule and section 405 of the Code operate together, and full effect must be given to both. Ellis v. Van Ness, 14 How. 313. c. Stay of proceedings.-Where proceedings are stayed until the decision of an appeal, such stay does not extend the time to answer beyond the time when the appeal is decided. Petrie. v. Fitzgerald, 2 Abb. N. S. 354. And in general, a stay of proceedings does not extend the time to answer. McGown v. Leavenworth, 2 E. D. Smith, 24. Nor does an order for a bill of particulars, accompanied by a stay of proceedings, enlarge the time to plead. Platt v. Townsend, 3 Abb. 9; S. C 5 Duer, 668. d. Reservation in the order. - An order, extending time to answer, supersedes a prior motion noticed to strike out portions of the complaint, where there is no reservation in the order of the right to make such motion. Marry v. James, 34 How. 238. An order extending time to answer, operates as a waiver of all objection to the complaint, by the party obtaining it, and as a bar to a future motion for any alteration of the complaint, unless the right to make such motion is reserved. So, where the extension is granted by the adverse party. Bowman v. Sheldon, 5 Sandf. 657; S. C. 10 N. Y. Leg. Obs. 339. Where a stipulation enlarges the time to answer, and also gives the right to make such application as shall be advised, it reserves the right to a motion to strike out portions of the complaint. Lackey v. Vanderbilt, 10 How. 155. e. Order served by mail.-Where service by mail may be made, an order extending time to answer, mailed on the last day, is sufficient to prevent the plaintiff from entering a regular judgment, as upon failure to answer, and though no excuse for the delay be shown, and there is some reason to suspect intentional delay, yet such service of the order is strictly regular. Schuhardt v. Roth, 10 Abb. 203. In such case, if judgment is entered before the answer is received by the plaintiff, it will, on motion, be set aside, with costs to abide the event of the action. id. f. When demurrer is overruled.Where some of the defendants demur, and the demurrer is overruled, with liberty to answer in twenty days on payment of costs, and such decision on appeal is affirmed by the general term, then admitting that such defendants have the same time to answer after the general term decision, which was given them by the order overruling the demurrer, the answer must be tendered within twenty days after the decision of affirmance, although the costs of the demurrer have not been adjusted, or the right to answer is lost. Ford v. David, 1 Bosw. 569. But see 2 Wend. 293. Where an order overruling a demurrer requires the defendant to put in his answer in a specified time and pay the costs, or the bill be taken as confessed against him, a subsequent ex parte order extending time to answer, is irregular. Hurd v. -Haynes, 9 Paige, 604. g. Time to answer after publication-As to which, see note to section 138. After order to consolidate, see consolidating actions. II. SERVICE OF THE ANSWER. a. Where to be made.-Where the summons designates the place in which the answer is to be served on the plaintiff's attorney, the defendant is not, in any case, bound to serve his answer elsewhere by mail or otherwise. If the place so specified is the attorney's office, but not his residence, the office being closed, an endeavor to serve at the office, within the time allowed, followed by an actual service within a reasonable time afterwards, when the office is open, will be regarded as a sufficient service. In such case, an answer was disregarded and judgment entered. It was set aside with costs. A party is not bound to make an impracticable service. Lord v. Vandenburgh, 15 How. 363; S. C. 6 Duer, 703. See, also, note to section 411, post. b. Service when time has expired. An answer served after the time to answer has expired, unless it has been extended, is irregular. Dudley v. Hubbard, 2 Code R. 70. An answer may be put in at any time before plaintiff has entered judgment. Foster v. Udell, 2 Code R. 30, 31. But see Mandeville v. Winne, 1 Code R. N. S. 161; S. C. 5 How. 461; O'Brien v. Catlin, 1 Code R. N. S. 273; McGown v. Leavenworth, 2 E. D. Smith, 24, confirming Dudley v. Hubbard, and overruling Foster v. Udell. c. Returning answer. If the plaintiff intends to avail himself of an irregularity in the service, he should decline to receive the answer, or return it within a reasonable time, i. e., the same day or the day after, specifying his objections. Philips v. Prescott, 9 How. 433. And take judgment as for want of an answer. Strout v. Curran, 7 How. 36; Jacobs v. Marshall, 6 Duer, 689. The agent employed by defendant's attorney to make the service, is a proper person to return the answer by, with the reasons for its rejection. Nor can the defendant's attorney, by sending the answer to the plaintiff's attorney a second time, make it his duty to return it again. id. Where two joint defendants served a joint answer after the time of one of them had expired, and the plaintiff's attorney returned it and waited until the other defendant's time expired and then entered judgment, held regular. Jacques v. Greenwood, I Abb. 230. d. Default; as to which, see note to section 246, post. e. Separate answers.-A defendant who defends separately, and sets up a claim adverse to that of a co-defendant, is not bound to serve his answer upon such defendant, if the title by which he claims is set forth in the complaint. Bogardus v. Parker, 7 How. 305, 307; Leavitt v. Fisher, 4 Duer, 2. An f. Demurrer and answer.-A demurrer is, in law, an answer. State of New Jersey v. State of New York, 6 Peters, 323. A demurrer is not an answer within the meaning of § 275 of the Code. Kelly v. Downing, 42 N. Y. (3 Hand), 71, (77.) The province of the demurrer is to point out the defect in the pleadings demurred to, so that it may be amended. Cook v. Crawford, 1 Texas, 9. The answer and demurrer are distinct pleadings. Connecting them in form and in the same paper does not change their distinction. Howard v. Michigan Southern R. R. Co. 5 How. 206; S. C. 3 Code R. 213. objection set up by answer that the complaint is insufficient, is improper and is a demurrer. Slack v. Heath, 1 Abb. 331, 337; S. C. 4 E. D. Smith, 96. A defendant cannot answer and demur to the same matter. Munn v. Barnum, 12 How. 563; S. C. 1 Abb. 281; Spellman v. Weider, 5 How. 5. To determine whether a defense is a demurrer or an answer, it is only necessary to ascertain whether it requires that any facts should be proved or not. Struver v. Ocean Insurance Co. 16 How. 422. A defendant cannot answer and demur to the same count. Where an answer contained an objection of want of parties, it was held to be a demurrer, and defendant compelled to elect whether to abide by the answer or demurrer. Ib. g. Defective pleading. Where a pleading is regularly served in proper time, whether answer, demurrer or amended answer, so that the only question is one of sufficiency, it cannot, although defective, be treated as a nullity. Strout v. Curran, 7 How. 36; Hartness v. Bennett, 3 id: 289; Bergman v. Howell, 3 Abb. 329; Spencer v. Tooker, 12 id 353; Ross v. Longmuir, 15 id. 328; Chadwick v. Snediker, 26 How. 60. Where the answer does not present a material issue, the plaintiff should move for leave to proceed as for want of an answer. Ib. h. Answer by married woman.—In an action against husband and wife, where the action concerns the separate estate of the wife, she may answer separately, as a matter of course. Harlay v. Ritter, 18 How, 147; S. C. 9 Abb. 400. Where a married woman is joined as a defendant with her husband in respect to her separate estate, she may put in a separate demurrer. Arnold v. Ringold, 16 How. 158. Otherwise in Francis v. Ross, 17 id. 563. See note to section 114, ante. i. Answer by an infant.-See note to section 115, ante. demur. § 144. [122.] (Am'd 1849.) When the defendant may The defendant may demur to the complaint, when it shall appear upon the face thereof, either: 1. That the court has no jurisdiction of the person of the defendant, or the subject of the action; or, 2. That the plaintiff has not legal capacity to sue; or, 3. That there is another action pending between the same parties for the same cause; or, 4. That there is a defect of parties, plaintiff or defendant; or 5. That several causes of action have been improperly united; or, 6. That the complaint does not state facts sufficient to constitute a cause of action. GENERAL NOTES. a. When to demur.-A demurrer is only proper when the ground therefor appears on the face of the complaint. Getty v. Hudson River R. R. Co. 8 How. 177; Wilson v. Mayor, etc. of New York, 15 id. 500; S. C. 6 Abb. 6; 4 E. D. Smith, 675; 1 Abb. 4; Coe v. Beckwith, 31 Barb. 339; S. C. 19 How. 398; 10 Abb. 296. b. Effect of demurrer.-A demurrer admits all relevant facts that are well pleaded, but not conclusions of law. Hall v. Bartlett, 9 Barb. 297; Acome v. American Mineral Co. 11 How. 24; Bennion v. Davidson, 3 Mees. & Wels. 179; S. C. 1 Horn & Hurl. 48; Freeman v. Frank, 10 Abb. 370. When the allegations in a pleading are contradictory, a demurrer only admits those which the law adjudges to be true. Freeman v. Frank, 10 Abb. 570. A demurrer continuing upon the record is an admission of the facts stated in the pleading, not only for the purpose of the argument, but as evidence upon the trial. Cutler v. Wright, 22 N. Y. (8 Smith), 472. c. Neither a part of an entire cause of action, nor a paragraph, can be expunged on demurrer, unless it amounts to a separate cause of action, and is so stated. Lord v. Vreeland, 15 Abb. 122; S. C. 24 How. 316. d. Several causes of action.-Where the complaint contains in form but one cause of action, but sets forth facts constituting two or more causes of action, the remedy is not by demurrer, but by a motion either to strike out all but one cause of action, or to compel the plaintiff to elect on which he will proceed. Cheney v. Fisk, 22 How. 236. In such case, if one of the causes of action cannot be sustained for want of proper parties defendant, it should be treated as irrelevant or immaterial. Lord v. Vreeland, 24 How. 316; S. C. 15 Abb. 122; Aff'g S. C. 13 Abb. 195. e. Improper relief demanded.—Where the complaint prays for relief beyond what the facts alleged therein authorize, the remedy is not by a demurrer, but by a motion to strike out such parts of the prayer as are not thus authorized. Lord v. Vreeland, 13 Abb. 195; Roeder v. Ormsby, 13 id. 334; S. C., 22 How. 270. And where damages of a special character should have been alleged more specifically, the remedy is by motion and not by demurrer. Hewit v. Mason, 24 id. 366. f. Improper joinder of parties.-In an action for a debt contracted by partners, where a surviving partner and the personal representatives of a deceased partner are joined as defendants, and that fact appears on the face of the complaint, the objection to such joinder must be raised by demurrer. Higgins v. Freeman, 2 Duer, 650. g. When demurrer is irregular.— A demurrer to a hypothetical answer is of no tion 153 of the Code authorizes plaintiff to deavail. Taylor v. Richards, 9 Bosw. 679. SecHow. 234. The only grounds of demurrer by mur in only a single case. Simpson v. Loft, 8 a party defendant are specified in this section. Haire v. Baker, 5 N. Y. (1 Seld.) 357; SimpSandf. 640; S. C. 10 N. Y. Leg. Obs. 166; son v. Loft, 8 How. 234; Beale v. Hayes, 5 Harper v. Chamberlain, 11 Abb. 234. A detherefore, irregular. Spies v. Accessory Transit murrer on the ground of mere uncertainty is, Co. 5 Duer, 662; Seeley v. Engell, 13 N. Y. Roeder v. Ormsby, 13 Abb. 334; S. C. 22 (3 Kern.), 542; Rev'g S. C. 17 Barb. 530; How. 270. So, also, for redundancy. id.; Ward v. Ward, 5 Abb. N. S. 145. So, also, for irrelevancy. Smith v. Greenin, 2 Sandf. 702; Watson v. Husson, 1 Duer, 242; S. C. Aff'd, tiveness. Brown v. Richardson, 20 N. Y. (6 14 N. Y. (4 Kern.), 60. And for argumentaSmith), 472; Rev'g S. C. 1 Bosw. 402; Zabriskie v. Smith, 13 N. Y. (3 Kern.), 322; Prindle v. Caruthers, 15 N. Y. (1 Smith), 425. So in case the causes of action are not separately stated and numbered. Cases to the contrary are overruled. Fickett v. Brice, 22 How. 195. See note VI. Where the defect is merely one of form, a demurrer is not the proper remedy. Howell v. Fraser, 1 Code R. N. S. 270. Nor where it appears on the face of the complaint that the statute of limitations is a bar to the action. Sands v. St. John, 23 How. 140; S. C. 36 Barb. 628. Nor |