AFFIDAVIT-continued.

of publication, 156 d, 614 a.

amendment of, 252 b, 263 c, 264 k.
clerks in district courts may take, 74 e.
using pleadings as, 322 e.

folios of, to be numbered and marked, 668.

AFFIRMANCE, judgment of, what is not, 649 c.

in part, costs on, 479.

in court of appeals, 30.

on equal division of court, effect of, 41 a.
by default in court of appeals, 652.
notice of, when to be given, 652.

AFFIRMATIVE RELIEF, to defendant, 372, 406, 410.
on motion, 598 g.

answer need not contain a prayer for, 203 f.

AGENT, when liable to arrest, 272, 274, 275.

may be examined as a witness against his principal, 583 f.

when he may verify a pleading, 223.

form of verification by, 225.

See Managing agent.

AGREEMENTS as to proceedings in a cause to be in writing or entered on min-

utes, 666.

ALBANY CITY. Justices courts, act relating to fraudulent debtors extended to
judgments of, 76 c.

mayor's court of, statutes relating to, 46 h.

ALDERMAN, may be examined as a witness in a suit against the mayor, &c.,

583 b.

ALIEN ENEMY, time of limitation does not run against, 91.

ALIMONY, no appeal from order granting, 533 k, l.
ALLEGATIONS in pleading, when deemed true, 250.

when considered as denied or avoided, 250.
material, what are, 251 d, e, f, 234, c, d.

ALLOWANCE, in addition to costs, in difficult or extraordinary cases, 487.

in action for partition, 488.

foreclosure, 488.

where attachment has issued, 488.

to construe a will or other written instru-
ment, 488.

proceedings to compel determination of claims to real
property, 498, 488 b.

where prosecution or defence unreasonably and unfairly
conducted, 488.

not allowed on judgment on appeal,

part of the costs, 488.

488 a.

ALLOWANCE-continued.

when it has been refused, after judgment under section
247, 490 6.

where two actions brought, and one would have
sufficed, 490 c.

where less recovered than defendant had of
fered, 490 d.

where defendant was surety only, 490 e.

where plaintiff recovered less than a third of the
amount claimed, 490 f.

where inquest taken, 490 f, 488 e:

in foreclosure, 490 g, 589 f.

where trial occupied two or three hours, 490 h.
where some of clains unfounded, 490 i.

after judgment confirmed, 490 j.

to defendants who unnecessarily severed in
their defence, 490 k.

in doubtful cases, 490 l.

in action to restrain proceedings to foreclose
mortgage, 490 m.

in action to set aside an assignment, 490 n.

can only be on a judgment, 491 a.

when, where, and to whom the application for, should be

made, 491.

costs on motion for, 492.

after trial before referee, 492.

review of order for, 493, 494 a, b, 533 o.

how computed, 494.

court may pass on value of property to determine

amount of, 369 c.

of bail, 288.

ALTERNATIVE judgment in, when allowable, 350 h, 414, 415 a, b.

relief, cannot be demanded, 244 c.

AMENDMENTS, courts are liberal in carrying provisions as to, into effect, 252 a.
the provisions of the Revised Statutes as to, are not repealed, 252 c.
the decisions under the Revised Statutes as to allowing or refusing
amendments, are safe guides in allowing or disallowing amendments
under the code, 252 e.

the whole matter of, is in the discretion of the court, 252 f.

no appeal lies from order granting or refusing, 252 ƒ.

of variances, 253.

on the trial, 253, 254, 261 d, e, 265 b.

as to amount or nature of the relief demanded, 254, 261 a.

are to cure defects, not to supply deficiencies of evidence, 255 c.

of course, 255.

after an amendment by order, 258 d.

is an absolute right, 256.

after decision on demurrer, 255.

in names of parties not allowed of course, 258 g.

under form of, party cannot introduce new cause of action or de-
fence, 258.

of pleadings after answer of title in justices' courts, 259 c.

of pleadings after judgment, 265.

circumstances happening after commencement of action cannot be in-
troduced by, 259 e.

the addition of a verification is not, 259 h.

alteration not affecting legal effect is not an amendment, 259 i.

of course, after issue, notice of trial, and examination of a witness, not
allowed, 260 a.

of course, apply only to pleadings which are regular, 260 b.
right to make, is not per se a stay of proceedings, 260 c.

AMENDMENTS-continued.

of summons, cannot be had except by leave of the court, 260 d.
when court may order, 260, 266.

in amount claimed, 261 a, 265 c, 370 a.

in names of the parties, 254 i, 261.

from tort to contract, 262, a, b.

as to manner of stating cause of action, 262 e, 264.

even though it change the cause of action, 262 d, 264 f.

to set up defence of usury, 264, g, h.

of complaint for partition, 263 g.

by adding a next friend, 263 h.

of summons, 263 c.

of verdict, 264 j, 371 e, 374 C,

of judgment record, 264 i.

after nonsuit, 263 f.

d.

effect of, on order of reference, 389 d.

of judgment, 415 b.

motion for, when to be on notice, 610 e, 597 b.

of record after appeal, 265 a.

is a waiver of a default previously taken, 264 a.

of notice of appeal, 264 c.

bill of exceptions, 264 d.

of undertaking on appeal, 263 b.

affidavits, 252 b, 263 c, 264 k.

party asking leave to make, should pay costs, 262 f, g, 263 a, 264 e.
terins of, 262 g, 265, c, h.

when payment of cost is a condition precedent to right to make, 266 b.
cannot be asked for at general term, 265 d, e.

by making proceeding conform to requirement of code, 266.

on a motion, of proceedings objected to, 266 a.

after notice of appeal of any omission in perfecting appeal or staying
proceedings, 514.

after appeal, 267 c.

in justice's court after demurrer, 65.

generally, 66, 68, 69.

AMOUNT CLAIMED, may be increased by amendment, 265 c.

judgment by default not to exceed, 350 i, j, 413.

ANSWER, the only pleading by defendant is a demurrer or answer, 177.
when it must be served, 177.

is different from a demurrer, 177 d, 190 f.

defendant may be let in to answer after time to answer has expired, 177 f,
266.

served after time to answer has expired, and without leave of the court, is
irregular, 178, f, g.

of statute of limitations when defendant restrained from interposing, 177.
of usury when defendant will not be restrained from interposing, 178 b.
objections to complaint not appearing on the face thereof are to be taken
by answer, 186.

objection not taken by answer or demurrer when waived, 187.

time to answer if complaint be amended, 186.

time to answer may be extended, 604.

order for extending time to answer how obtained, 661.

what it must contain, 189.

cannot be put in before service of complaint, 178 h.

time to answer, after order extending time is revoked, 178 i.
after service by publication, 178 j.

after amendment, 186.

after order for discovery of books, &c., 658.

cannot be treated as a nullity, 178 k, 203 i.

copy of, need not be served on defendant, 179 a.
commencement of, 190.

judgment, 201.

libel, 241.

limitation, 81, 177.

partition, 201.

promissory note, 201, 193 c, 235, 232 c, d, 356 a, b, e, 355 a, b, c, d,

e, f, 354 e, f.

usury,

203.

setting up a tender, 203 h.

prayer for relief in, 203.

that plaintiff not real party in interest, 204 b.

that another action pending, 204 c, 179, 180, 216.

of one defendant not evidence against his co-defendant, 251 b, 407 b.

admitting part of claim, 338, 340, 341.

judgment for want of, 344.

demurrer to, 215, 218, 216 b.

after allowance of demurrer on payment of costs, 260 e.

of discharge in bankruptcy how replied to, 217 e.

of another action pending, reply to, 216, e, f, g, h.

on demurrer to, sufficiency of complaint may be considered, 184 1, 218 g.

in action to recover property distrained damage feasant, 243.

amended, what is not, 217 c.

once, of course, 255.

of course, in what cases, 256 a, l, 257 c, 258 a, 260 a, b.

of several defences, to be separately stated, 204.

to be numbered, 687.

of counter claim, 204, 207.

to part and demurrer to residue of complaint, 210.

by one defendant, and demurrer by another, 210 g.

sham, irrelevant, may be stricken out, 210.

when it may be replied or demurred to, 215.

supplemental, when proper, 268, 198 f.

frivolous, motion for judgment on, 218.

discovery of documents to enable defendant to prepare, 570 j.

after discontinuance of action in justice's court by reason of title coming in
question, 63.

in justices' courts, 65, 68 a, b, c, d.

ANSWER-continued.

of title in justice's court, 59.

to be accompanied with undertaking, 60.
proceedings after, 91, 62, 63, 261 b.

as to one of several causes of action, 64.

APPEAL in general, substitute for writ of error, 511.
in existing suits, 511 a, b, 537, 24 c to f.

second, in same action, when permitted, 512 g, h.
may be after payment of judgment, 28 d.
who may appeal, 513, 267 a.

parties to, how designated, 514.

title of action not changed by, 514.

how made, 514.

entry on docket that judgment secured on, 418.

mistake in proceedings after notice of, may be rectified, 514, 515 f.

not made until notice of, is served on clerk, 515 a.

service of notice, 515 a to e.

clerk to transmit papers to appellate court, 515.

order of, on calendar, 515 g.

papers transmitted by clerk may be amended, 516 a.
intermediate orders reviewed on, 516.

judgment on, 516.

restitution on reversal of judgment, 516.
new trial may be ordered on, 516, 517 b.
time for, 517, 518.

cannot be enlarged, 517 j. 518 d.

when it commences to run, 518, f, g, h.

cannot be until after entry of the judgment appealed from, 518 a.
entry of judgment may be compelled to enable appeal to be
brought, 518 b, k.

when judgment is entered so as to permit an appeal, 518 i.

notice of, may it be amended? 264 d.

amendment after, 267 c.

costs on, 481, 550.

proceedings to determine conflicting claims to real property,

to court of appeals, in what cases, 22 to 28, 519.

power of court on, 28.

remittitur after, 29.

double interest by way of penalty, 29.

judgment on, 30, 516.

security on, 519.

may be limited or dispensed with, 522.

627 c.

stay of proceedings on, from judgment directing the payment of
money, 521.

from judgment directing the assignment or delivery of

documents or personal property, 521.

from judgment to execute conveyance or other in-
strument, 522.

from judgment directing sale or delivery of real prop-
erty, or for the sale of mortgaged premises, 522.

effect of stay of proceedings on, 522.

by executors, administrators, trustees, or persons acting in an-
other's right, 522.

undertaking on, and service thereof, 523.

security on, to be approved and justify, 523, 424.
notice of security may be entered on docket, 418.

case of perishable property, 525.
undertakings on, to be filed, 525.
time for, 517, 518.