(f.) 6. INSUFFICIENCY.

In this, as in the preceding subdivisions, the treatment of the subjectmatter, so far as regards the essential conditions of sufficiency or insuf ficiency, has been substantially anticipated. See chapter II. of book VII, where the subject of complaint is treated in detail. The present remarks will be confined to the manner in which an objection on this ground is to be presented, when tenable. The mode of statement appropriate for that purpose will be considered in the succeeding section.

When duly taken, a demurrer on this ground puts in issue the validity of the whole complaint, so that, if the case thereby alleged is deficient by the non-statement of any fact necessary for the plaintiff to prove to make out his action, the demurrer must be sustained. See White vs. Brown, 14 How., 282.

But, when taken, it must cover the whole ground of the complaint, and the defects presented must be so substantial in their nature and so fatal in their character, as to authorize the court to say, taking all the facts to be admitted, they furnish no cause of action whatever. Those defects must be such as would render the complaint bad on a general demurrer at law, or bad for want of equity in chancery. Richards vs. Edick, 17 Barb., 260; Woodbury vs. Sackrider, 2 Abb., 402; Graham vs. Camman, 5 Duer, 697; 13 How., 360.

And, on demurrer, the old rule that a pleading is to be construed most unfavorably to the party making it, is essentially qualified. Every reasonable intendment and presumption will lie, on the contrary, in favor of the complaint. Herkimer County Bank vs. Furman, 17 Barb., 116.; Allen vs. Patterson, 3 Seld., 476 (480); Wesley vs. Bennett, 5 Abb., 498; 6 Duer, 688; The People vs. Ryder, 2 Kern., 433; affirming same case, 16 Barb., 370.

And, in accordance with this rule, a complaint to be overthrown by demurrer, must be wholly insufficient. If, in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if a good cause of action can be gathered from it, it will stand, however inartificially those facts may be presented, or however defective, uncertain, or redundant may be the mode of their statement. The remedy of the defendant for defects of this nature is by motion. See The People vs. Ravenswood, &c., Turnpike and Bridge Company, 20 Barb., 518; Hillman vs. Hillman, 14 How., 456; Richards vs. Edick, 17 Barb., 260; Hammond vs. Hudson River Iron and Machine Company, 20 Barb., 378; Winterson vs. Eighth Avenue Railroad Company, 2 Hilt., 389.

The above rule, that pleading under the Code must be construed most favorably to the pleader, must not, however, be carried to too

great an extent. Though admissible on points of form, it cannot be held applicable with regard to the fundamental requisites of a cause of action. If they are absent, the pleading will be demurrable, as being defective in substance. Spear vs. Downing, 34 Barb., 522; 22 How., 30; 12 Abb., 437.

And the objection that two or more plaintiffs unite in bringing what is in fact a several cause of action, is of this nature, and may be reached by general demurrer. Mann vs. Marsh, 35 Barb., 68; 21 How., 372.

In presenting objections of this nature, the defendant must take especial care to confine them to such portions of the pleading as are open to legitimate impeachment. If the question be presented by general demurrer to the whole complaint, and any portion of that complaint, or any cause of action thereby presented be sufficient, the demurrer will fail, as being too broad, although other portions be really defective. Cooper vs. Clason, 1 C. R. (N. S.), 347; Newman vs. Otto, 4 Sandf., 668; 10 L. O., 14; Butler vs. Wood, 10 How., 313; Sheldon vs. Hoy, 11 How., 11 (16); Jaques vs. Morris, 2 E. D. Smith, 639; Martin vs. Mattison, 8 Abb., 3; Mabey vs. Adams, 3 Bosw., 346 (351). See also generally, Cook vs. Chase, 3 Duer, 643.

In like manner a demurrer may be too broad as to parties. A joint demurrer must be fully sustained as to all who participate in it, and if the case fail as to any one of them, the demurrer will be bad. Unless, therefore, the case be, indisputably, one of joint interest, the precaution of taking the objection by separate demurrers should never be omitted. Vide Phillips vs. Hagaden, 12 How., 17; Eldridge vs. Bell, 12 How., 547; Woodbury vs. Sackrider, 2 Abb., 402; The People vs. The Mayor of New York, 28 Barb., 240; 17 How., 56; 8 Abb., 7 (15). So, likewise, if, on a demurrer to the whole complaint, any one of several co-plaintiffs may have judgment, the demurrer will be bad. Peabody vs. Washington County Mutual Insurance Company, 20 Barb., 339.

Where, however, a demurrer is too broadly stated in its general terms, it may be so limited by the specification as to render it available as a demurrer to portions of the complaint only. See Matthews vs. Beach, 4 Seld., 173. Nor, it seems, will surplusage be an objection, where, in fact, a demurrer is sufficient. Smith vs. Brown, 6 How., 383.

Where both defendants have a similar interest in the objection to the plaintiff's recovery, their joint demurrer may be available, though the interests, in respect of which it is taken, may be several. See Hess vs. Buffalo and Niagara Falls Railroad Company, 29 Barb., 391. See also, as to a demurrer by husband and wife in an action

against the wife's separate estate, Goodall vs. McAdam, 14 How., 385; Goelet vs. Gore, 31 Barb., 314.

Demurrer will not lie in respect of the relief demanded, or the amount claimed by the complaint. Moran vs. Anderson, 1 Abb., 288; Beale vs. Hayes, 5 Sandf., 640; 10 L. O., 246; The People vs. The Mayor of New York, 28 Barb., 240; 17 How., 56; 8 Abb., 7 (15); Andrews vs. Shaffer, 12 How., 441 (443); Hecker vs. De Groot, 15 How., 314; Moses vs. Walker, 2 Hilt., 536; Meyer vs. Van Collem, 28 Barb., 230; 7 Abb., 222 (224); Woodgate vs. Fleet, 9 Abb., 222 (236).

See as to the power of a defendant to put in separate demurrers to each of several allegations, in a complaint amounting to the statement of a separate cause of action, Ogdensburgh Bank vs. Paige, 2 C. R., 75. As regards this ground of objection it is, by express provision, in section 148, optional for the defendant either to submit it preliminarily in this form, or to defer taking it until the trial. See this subject considered below, under the head of Waiver of Objections.

But if, instead of taking his objection to a pleading in a preliminary form, the party defers it until the trial, he will be presumed to have been satisfied with it as it stood, and it will be taken most strongly against him. See collaterally, on the subject of an indefinite answer, Wall vs. The Buffalo Water Works Company, 18 N. Y., 119.

§ 170. Form and Mode of Demurrer.

This pleading consists simply of a short and succinct statement of the grounds of objection to the complaint.

Distinctness in such statement is, as will be seen, made an essential requisite by section 145.

Being specially grounded on section 144, the precise phraseology of that section should be used in all cases, either as preliminary to, or part of the statement of the ground of objection. An omission to comply with this requisite will render the pleading bad. See Harper vs. Chamberlain, 11 Abb.,.234.

Each ground must be separately stated, and it must appear upon its face on which subdivision of the section it is founded.

It must,

And, when separately stated, the grounds taken should be also plainly numbered, according to the requisitions of rule 19. When complete, the pleading requires no verification. however, be subscribed by the defendant's attorney, or it irregular. See Ehle vs. Haller, 6 Bosw., 661; 10 Abb., 287. copy must be served, in due course, upon the adverse party.

will be

And a

It seems that a demurrer to part of a complaint does not lose its distinctive character, though made out on one paper, and connected in

form with an answer in the same pleading. Howard vs. Michigan Southern Railroad Company, 5 How., 206; 3 C. R., 213.

As to the expediency of serving an affidavit of merits in connection with a demurrer, where the grounds on which the latter is taken are not clearly tenable, see Appleby vs. Elkins, 2 Sandf., 673; 2 C. R., 80; Bank of Lowville vs. Edwards, 11 How., 216.

(a.) STATEMENT OF GROUNDS.

It is essential to the efficiency of this pleading that every ground on which the complaint is impeached should be distinctly alleged; and, if an objection is tenable in more than one shape, that it should be presented in every phase which it may assume. On the argument, counsel will be strictly confined to the grounds actually assigned, and no other objection, however tenable, can then be raised. See Hobart vs. Frost, 5 Duer, 672; reported, 3 Abb., 119, as Viburt vs. Frost ; Eldridge vs. Bell, 12 How., 547; Wilson vs. The Mayor of New York, 15 How., 500; 6 Abb., 6; reversing same case, 4 E. D. Smith, 675; 1 Abb., 4; Moore vs. Smith, 10 How., 361; Bank of Lowville vs. Edwards, 11 How., 216; Cook vs. Chase, 3 Duer, 643. See, however, disregard of this defect, when arising from a clerical error, Connecticut Bank vs. Smith, 9 Abb., 168.

The cause of deinurrer must be assigned in the words of the section, or, possibly, in words closely equivalent. A mere detailed specification of grounds of objection, not assigning any of the grounds there stated as grounds of demurrer, will be wholly unavailing. Harper vs. Chamberlain, 11 Abb., 234.

And when the error of insufficiency is assigned in the words of the section, a detailed statement of the grounds of assignment may operate to confine the pleader to those grounds, so as to exclude him from all others. See Nellis vs. De Forest, 16 Barb., 61 (65).

A specification may, however, have the effect of curing an accidental omission to make a specific assignment. See Connecticut Bank vs. Smith, 9 Abb., 168.

And it may possibly operate to sustain a demurrer otherwise too broad, by limiting its extent. Matthews vs. Beach, 4 Seld., 173.

A demurrer, on the ground of insufficiency, may properly be raised by an objection, in the precise words of subdivision 6, without stating any grounds whatever on which such objection is based. This is now abundantly settled by the following decisions: Haire vs. Baker, 1 Seld., 357; Paine vs. Smith, 2 Duer, 298; Durkee vs. Saratoga and Washington Railroad Company, 4 How., 226; Johnson vs. Wetmore, 12 Barb., 433; Dauchy vs. Bennett, 7 How., 375; Hoagland vs.

Hudson, S How., 343; Getty vs. Hudson River Railroad Company, 8 How., 177. See also dictum in Swift vs. De Witt, 3 How., 280; 1 C. R., 25; 6 L. O., 314. See likewise, in relation to demurrer by answer, Hyde vs. Conrad, 5 How., 112; 3 C. R., 162; Anibal vs. Hunter, 6 How., 255; 1 C. R. (N. S.), 403; Arthur vs. Brooks, 14 Barb., 533, and Noxon vs. Bentley, 7 How., 316.

By these decisions the following, holding to the contrary, and that a specification of the alleged errors is necessary, are clearly overruled: Grant vs. Lasher, 2 C. R., 2; Hunter vs. Frisbee, 2 C. R., 59; 7 L. O., 319; White vs. Low, 7 Barb., 204; Glenny vs. Hitchins, 4 How., 98; 2 C. R., 56; Swift vs. Dewitt, 3 How., 280; 1 C. R., 25; 6 L. O., 314; Purdy vs. Carpenter, 6 How., 361, and Hinds vs. Tweddle, 7 How., 278, the last being, however, a case of demurrer för misjoinder.

The objection of want of legal capacity to sue is, in like manner, raisable by a specification, in the mere words of subdivision 2, when apparent on the face of the complaint. Hulbert vs. Young, 13 How., 413. See, as to a specification in an answer, in substantially the words of the section, being sufficient to raise the objection of the pendency of another action, without going into matters of detail, Ward vs. Dewey, 12 How., 193.

In Getty vs. The Hudson River Railroad Company, 8 How., 177, above cited, it is laid down that such is the case, as to any of the causes of demurrer given by the 144th section, when the ground of objection is apparent upon the face of complaint. The specification may then be made in the precise words of the section, but it must state distinctly upon which ground or grounds the party relies. Where, however, the impeachment is for want of jurisdiction, or defect of parties, it should appear whether it is the, want of jurisdiction of the person of the defendant, or of the subject-matter of the suit; and as to parties, whether it is a defect of parties, plaintiff or defendant.

In the same manner it will be always expedient to show upon the face of the specification any particulars necessary or expedient, for the purpose of making the objection taken appear distinctly, such as the names and interest of parties not brought in, the nature and incongruity of causes of action, improperly joined, and such like matters, tending to show the existence of a valid objection.

In relation to a demurrer for defect of parties, it was held in Skinner vs. Stuart, 13 Abb., 442, that a mere statement of the objection in the words of the subdivision was insufficient. The particular defect should have been specified.

Care must be taken, however, to confine such specifications to matters apparent on the face of the complaint, as any allegation of, or allusion to extraneous matter may render the pleading itself defective.