The plaintiff should not ask too much. See Wesson vs. Judd, 1 Abb., 254. That he lays ground only for partial relief on the hearing, will not form an objection to the entertaining of the motion. De Santes vs. Searles, 11 How., 477. A general demand for relief should be always subjoined to the specific notice, as it may be made the ground for a partial striking out, though the application, as originally made, may not be fully sustainable. Blake vs. Ellred, 18 How., 240; Hecker vs. Mitchell, 5 Abb., 453; 6 Duer, 687. See also Hull vs. Smith, 1 Duer, 649; 8 How., 149.

See, as to the power of granting relief under the usual general demand, by directing the defendant to satisfy admitted portions of the plaintiff's claim, in connection with a motion of this nature, Fosdick vs. Groff, 22 How., 158.

The exact objects of the motion, and the exact portions of the pleading sought to be impeached, if the objection be partial, ought in all cases to be distinctly pointed out. Blake vs. Eldred, supra; though this is not indispensable: see Bailey vs. Lane, infra.

It is in the power of a plaintiff, or other party aggrieved by the adverse pleading, to combine a demand for both classes of relief, and also one for a partial expunging under section 160, if he think fit, in one and the same motion. People vs. McCumber, 18 N. Y., 315; affirming same case, 27 Barb., 632; 15 How., 186. See also Bailey vs. Lane, 21 How., 475; 13 Abb., 354; Burrall vs. Bowen, 21 How., 378.

And not only so, but if he omit to do so, he makes such omission at his peril. Objections of the above nature cannot be split up into several motions. They must all be embodied in the original notice, or relief may be refused on a subsequent application. Desmond vs. Woolf, 6 L. O., 389; 1 C. R., 49; Thursby vs. Mills (No. 2), 11 How., 114.

A motion on the above grounds, if made within the period during which the pleading impeached is amendable, may be defeated, by an amendment of that pleading in due course. It will then be denied, but without costs. Currie vs. Baldwin, 4 Sandf., 690; Burrall vs. Moore, 5 Duer, 654.

And, on the hearing of the motion, the judge has full power to grant either an absolute or a conditional order, allowing an opportunity of amendment as he may see fit. Witherhead vs. Allen, 28 Barb., 661; Witherspoon vs. Van Dolar, 15 How., 266. And this, either in or out of court, where the application is under section 247. Fales vs. Hicks, 12 How., 153. These cases seem to overrule the contrary dictum in Shearman vs. New York Central Mills, 1 Abb., 187 (190). See also, as to a motion under section 152, Blake vs. Eldred, 18 How., 240 (244). But, if there be any doubt as to the propriety of extending this relief, the court may put the defendant to his motion at special term.

See Marquise vs. Brigham, 12 How., 399; Tompkins vs. Acer, 10 How., 309.

In opposing a motion on either ground, the defendant should, in all cases, be prepared with the usual affidavit of merits, if not already filed and served. And, where the good faith of the pleading is impeached, he must also tender a full and sufficient explanation by affidavits. mere technical affidavit of merits, or a mere denial of bad faith, unaccompanied by sufficient explanation, will not be sufficient. The existence of a valid and sufficient bona fide defence must be shown. If omitted, the motion will be granted, and leave to plead over may be refused. See People vs. McCumber, above cited; Farmers' and Mechanics' Bank of Rochester vs. Smith, 15 How., 329; Allen vs. Fosgate, 11 How., 218; Appleby vs. Elkins, 2 Sandf., 673; Walker vs. Hewitt, 11 How. 395; Fleury vs. Roger, 5 Sandf., 646; Ketchum vs. Zerega, 1 E. D Smith, 553; Slack vs. Cotten, 2 E. D. Smith, 398; Corbett vs. Eno, 29 How., 8; 13 Abb., 65; Miller vs. Hughes, 21 How., 442; 13 Abb. 93, note.

The various points which have arisen as to the nature of the decision on a motion under section 247, and as to whether it is properly a judg ment or an order; and also as to the mode of reviewing, and the extent to which such a decision will be reviewed on appeal, will be hereafter noticed under their appropriate heads. If a pleading have been rightly overruled, the question as to whether it was or was not actually frivolous, will not be entertained on such an appeal. Wesley vs. Bennett, 5 Abb., 498; 6 Duer, 688; Martin vs. Kanouse, 11 How., 567; 2 Abb., 327; Griswold vs. Laverty, 3 Duer, 690; 12 L. O., 316 ; Witherhead vs. Allen, 28 Barb., 661 (668); Lee vs. Ainslie, 1 Hilt., 277; 4 Abb., 463.

If the whole of an answer be stricken out as irrelevant, without leave to plead over, the plaintiff becomes entitled to sign judgment as on default, nor can the defendant amend, or serve another answer. See Aymar vs. Chase, 1 C. R. (N. S.), 141.

(f) MOTIONS TO ELECT.

The present is also the proper period for any other applications to the court, of a nature analogous to the above. However defective it may be in its essentials, an adverse pleading, when regular on its face, cannot be treated as a nullity, but the defect must be impeached in regular form.

For instance, a demurrer, put in conjointly with an answer to the same complaint, or the same cause of action, is clearly bad. The defendant, however, cannot disregard it; his course, under those circumstances, will be to move to strike out either the demurrer or the

answer, or that the defendant may be compelled to elect by which defence he will abide. Spellman vs. Weider, 5 How., 5; Slocum vs. Wheeler, 4 How., 373; Struver vs. Ocean Insurance Company, 16 How., 422.

The same power exists, with reference to the assertion of inconsistent defences, and, when the objection is sustainable, a motion of the same description affords the proper remedy. As a general rule, however, this objection will not lie under the Code, where such defences are separately stated. See this subject heretofore fully considered, and the cases in point cited in book VI., chapter I., section 123, under the head of Inconsistency. See especially, Hackley vs. Ogman, 10 How., 44, there referred to.

In Groshon vs. Lyons, 1 C. R. (N. S.), 348, it is laid down that, where the pendency of another action has been set up by the answer of the defendant, it will be irregular for the plaintiff to reply to such answer; and the proper practice will be for him to apply at once for a reference upon that particular point, the result of which will dispose of the preliminary question. See also Farmers' Loan and Trust Company vs. Hunt, 1 C. R. (N. S.), 1.

The proper way of bringing the question, and the effect of such pendency upon the suit, to a conclusive result, will be by motion on the referee's report, when obtained. See, as to such a motion, when the decision is in favor of the defendant, Blydenburgh vs. Borst, 5 Duer, 657. When the plaintiff prevails, his application should be, that the particular defence be stricken out. If, when this is done, no substantial defence is left standing in the answer, he may include in his application, a demand of judgment upon it, as frivolous, combining both species of relief in one notice. See cases cited in last subdivision.

(g.) MOTIONS ON GROUND OF CONTEMPT.

In some cases, it may be competent for the plaintiff to move to strike out the answer of the defendant, as a punishment of his contempt of court. See such relief granted conditionally, on non-compliance with an order directing the payment of costs and alimony, Barker vs. Barker, 15 How., 568; Farnham vs. Farnham, 9 How., 231.

Similar relief may also be obtainable, in respect of the omission of a defendant to comply with an order for discovery: see section 388, rule 16 (10); or refusing to submit to an examination, section 394. These questions will, however, be considered at a subsequent stage of the work, in connection with those particular proceedings.

182. Motion to Satisfy Admitted Portions of Demand.

The present will be the appropriate time for consideration of the remedies provided in this respect, by section 244.

That section has been already cited in extenso, and the mutations which have taken place in it from time to time, noticed in detail, in book V., chapter V., section 116. It may be convenient, however, to repeat in terms, this portion of it, which runs thus:

"When it is admitted by the pleading or examination of a party, that he has in his possession, or under his control, any money or other thing capable of delivery, which, being the subject of the litigation, is held by him as trustee for another party, or which belongs or is due to another party, the court may order the same to be deposited in court, or deliv ered to such party, with or without security, subject to the further direction of the court.

"Whenever, in the exercise of its authority, a court shall have ordered the deposit, delivery, or conveyance of money or other property, and the order is disobeyed, the court, besides punishing the disobedience, as for contempt, may make an order, requiring the sheriff to take the money or property, and deposit, deliver, or convey it, in conformity with the direction of the court.

"When the answer of the defendant, expressly, or by not denying, admits part of the plaintiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy."

These provisions, as there noticed, date substantially from the amendment of 1851, except that the power of enforcing the order as a judg ment, contained in the last clause, was added on the amendment of 1857. Before that year, the only mode of enforcement was as a provisional remedy, i. e., by process of contempt, without the alternative now allowed, of issuing process in the nature of execution. This amendment, in its practical effect, tends to increase the scope, whilst it diminishes, to a certain extent, the stringency of the remedy as here provided. See cases below noticed.

It will be observed, that the two first clauses of the provisions, as cited, apply equally to cases, where the defendant's admission of money or property in his hands is obtained on his examination, as by means of his pleading. It will be, therefore, necessary to advert again to this part of the section, on a subsequent occasion, passing over that branch of the subject for the present.

This portion of the section has not, however, been made the subject

of much discussion. The remedy provided by it is patent, and the form of the motion grounded upon it obvious.

The application should be in the terms of the section, with the usual supplementary demand for further order or relief, the motion being grounded upon the admission relied on. And the order, when made, should be served personally, as the ulterior remedy may lie by process of contempt. Code, section 418.

Where the court has imposed the giving of security as a condition of granting the motion, that security should be prepared and filed, and notice of the filing, or a copy of it, with such notice indorsed, served simultaneously with the order.

In Burhaus vs. Casey, 4 Sandf., 706, this particular form of the remedy was granted, and funds in the hands of the defendant, intrusted to his charge for payment to a third party, were ordered to be deposited in court, or paid to the third party in question, within ten days; and, in the same case, 4 Sandf., 707, the same defendant was held arrestable, in respect of his neglect to perform his required duties.

In Roberts vs. Law, 4 Sandf., 642, where the defendant admitted partnership funds to be in his hands, which, on his statement, belonged to the representatives of his deceased partner, he was ordered to pay over such funds, though the affairs of the firm were still unsettled. The plaintiffs were required, however, to give security to contribute towards payment of outstanding claims, if established, and also their share of future expenses; and the defendant was allowed to retain sufficient to cover claims against the deceased partner, contested in the suit itself.

The remedy under the last subdivision, was foreshadowed in Tracy vs. Humphrey, 5 How., 155; 3 C. R., 190, where similar relief was granted, somewhat summarily perhaps, under the state of the law at that time.

Whilst the enforcement of the remedy lay merely in process of contempt, involving imprisonment of the defendant, the courts were indisposed to grant this relief, especially where bad faith could not be imputed to the defendant. Thus, in Smith vs. Olssen, 4 Sandf., 711, where the defendant had already offered judgment for the amount admitted by him, an order was refused. See also Ryder vs. Union India Rubber Company, 1 Abb., 444, (note). See, likewise, as to a sum before offered to, but refused by the plaintiff, St. John vs. Thorne, 2 Abb., 166. A more extended view has been taken of the operation. of the section in some cases, and orders of this description have been made in ordinary actions, when the admission of partial indebtedness has been clear; notwithstanding a previous general offer of judgment for the amount admitted. Merritt vs. Thompson, 3 E. D. Smith, 599;