to make it a question, may be adjudged frivolous. See Glenny vs. Hitchins, 4 How., 98; 2 C. R., 56; Appleby vs. Elkins, 2 Sandf., 673; 2 C. R., 80; Taylor vs. Corbiere, 8 How., 385; Greenbury vs. Wilkins, 9 Abb., 206, note; Lee vs. Ainslie, 1 Hilt., 277; 4 Abb., 463; Milliken vs. Byerly, 6 How., 214; Holstein vs. Rice, 15 How., 1.

A clearly untenable objection as to parties will be frivolous if taken by demurrer. Conde vs. Shepard, 4 How., 75; 2 C. R., 58; Camden Bank vs. Rogers, 4 How., 63; 2 C. R., 45. Or such an objection as to jurisdiction. Jacot vs. Boyle, 18 How., 106.

So also a demurrer on a point which forms actually no ground of defence. Bright vs. Currie, 5 Sandf., 433; 10 L. O., 104; Welles vs. Webster, 9 How., 251. Or where the objection only goes to the amount of the plaintiff's claim. Moran vs. Anderson, 1 Abb., 288.

Or one on the ground that details are not stated, when the allegations of the complaint are sufficient to raise an issue. Union Mutual Insurance Company vs. Osgood, 1 Duer, 707; 12 L. O., 85. Or where the objection taken is one properly raisable by motion and not by demurrer. Radway vs. Mather, 5 Sandf., 654.

Whenever a real defence exists to the action, leave to answer over will, doubtless, be given. Where, however, the demurrer is so clearly untenable, as to render it questionable whether it has been put in in good faith, and no affidavit of merits has been served or produced, leave to answer may be refused. See Appleby vs. Elkins, 2 Sandf., 673; 2 C. R., 80; Osgood vs. Whittlesey, 10 Abb., 134; 20 How., 72; Bank of Lowville vs. Edwards, 11 How., 216. See also Code, section 172, as to good faith being a necessary condition, on leave being allowed to plead over.

Nor will the defendant be allowed to put in a manifestly insufficient answer. Brown vs. Ward, 3 Duer, 660. Or an unconscientious defence, as the statute of limitations. Osgood vs. Whittlesey, supra.

A decision of this nature will not be interfered with on appeal, unless the court be of opinion that the demurrer was clearly good. Wesley vs. Bennett, 6 Duer, 688; 5 Abb., 498.

A demurrer to the Code itself, as unconstitutional, inasmuch as it abolished the distinction between law and equity, has been, as might have been expected, overruled as frivolous. Anon., 1 C. R., 49.

§ 173. Course on Service of Decision on Demurrer.

On the service of a demurrer the plaintiff is at liberty to amend his complaint, as in case of answer. On the decision the court may also allow the party to plead over on such terms as may be just. Code, section 172. This may either be by allowing an amendment of the

complaint where the demurrer is sustained, or by granting leave to put in an answer where it is either overruled or declared to be frivolous. If, too, the demurrer is allowed on the ground of misjoinder of causes of action, the court may allow the action to be divided into as many as may be necessary to the proper determination of the controversies brought in question.

In this latter case the proper division of the complaint into as many as may be necessary, will of course be imposed, and, when so divided, service must be made in the usual manner, with all the usual incidents consequent upon such service, as to the defendant's time to answer in each divided action and otherwise, unless the court make any different provision.

If, on a decision in the defendant's favor, the plaintiff have leave to amend, he must, of course, do so within the time allowed to him by the order; or if no time be so allowed, then within the usual twenty days, or he will forfeit his privilege, and the defendant will then be entitled to enter up and perfect judgment on the decision, as if no such leave had been given. See Ford vs. David, 1 Bosw., 569 (595). And if, on such decision, the leave to amend be, as is usual, made conditional on payment of the costs of the demurrer, such costs must be paid at or before the service of the pleading, or the adverse party may refuse to receive it, and then the same consequences will follow as if it had not been served at all.

The converse of this proposition is equally true where a demurrer is overruled, but leave given to answer over. That answer must be served, and costs, if imposed, paid in due time as above, or the leave will be forfeited, and the plaintiff entitled to his judgment.

Where, by the terms of the decision, leave is given to withdraw the demurrer on terms, it is essential to the further conduct of the action that such order should be fully complied with, and the demurrer withdrawn accordingly. If neglected, the adverse party will be entitled to read the pleading demurred to as an admission of the facts alleged upon it. Cutter vs. Wright, 22 N. Y., 472.

Special provision is made by section 146, for the case of an answer to the complaint when amended, either as of course, on the service, or by leave consequent upon the decision of a demurrer when interposed. A copy of the amended pleading must, in either case, be served on the defendant, who must answer it within twenty days. If omitted, the plaintiff may take judgment by default in a similar manner to the usual entry of default in service of answer, under section 246, on filing with the clerk due proof of the service of such amended pleading, and of the defendant's omission to answer it; giving eight days' notice of his application to the court for judgment, as prescribed in the same section, in

those cases when such application is necessary. See hereafter on these points, under the head of Entry of Judgment by Default.

On an amendment of this nature after decision, a copy of the amended pleading must be served upon every defendant, and even upon one who has not joined in the demurrer, but suffered a previous judgment against him by default. People vs. Woods, 2 Sandf., 652; 2 C. R., 18.

(a.) DEMURRER BY ANSWER.

The subject of demurrer by answer, so far as relates to any independent considerations in relation thereto, will be treated of in the next chapter.

CHAPTER III.

ANSWER.

§ 174. Its Office and Requisites.

THE office of this most important pleading is, to present the case of the defendant, in opposition to that attempted to be made out by the plaintiff, upon the facts of the case alone, or upon the law and the facts conjointly, according to the circumstances. It is, accordingly, the form of defence most usually adopted.

Its requisites are prescribed by section 149 of the Code, already cited, but which it will be convenient to repeat:

§ 149. The answer of the defendant must contain—

1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief;

2. A statement of any new matter constituting a defence or counter-claim, in ordinary and concise language, without repetition.

By section 150, the meaning and extent of the term counter-claim, and the cases in which a defence of that nature may be put in, are prescribed and defined. That branch of the provision will be considered in a subsequent portion of this chapter.

The section, however, proceeds thus:

The defendant may set forth by answer, as many defences and counterclaims as he may have, whether they be such as have been heretofore denomi

nated legal or equitable, or both. They must each be separately stated, and refer to the causes of action which they are intended to answer, in such manner that they may be intelligibly distinguished.

The above provisions are so clear, that no explanation seems requisite to make their general purport apparent. In their details, they will be hereafter considered.

The defendant has four courses open to him by means of an answer, when put in, any one or more of which he may adopt at his election, or all, if the circumstances admit.

1. He may demur to the complaint, for defects in law, latent in that pleading itself, but made patent by statements contained in the

answer.

2. He may put the plaintiff to full proof of his case, by denying the facts alleged.

3. He may present new matter, wholly or partially defeating or avoiding the plaintiff's claim.

4. He may seek to establish a counter-claim, wholly or partially extinguishing the plaintiff's demand, and may, by that means, seek for counter-relief in his own favor.

The above considerations will, accordingly, be treated in the order thus prescribed, such portions of the subject as are applicable to answer in general, without regard to the particular form of defence set up, being preliminarily considered.

(a.) MATTERS OF FORM.

An answer cannot properly be made, before the complaint is made out and served, or, at the least, filed in the clerk's office. One made and sworn to, without knowledge of the complaint, was held to be wholly irregular, and a fraud upon the court, in Phillips vs. Prescott, 9 How., 430. The defendant is, on the contrary, entitled to treat the copy complaint served upon him as that which he is required to answer, though manifestly incorrect, and to join issue and go to trial accordingly. See Trowbridge vs. Didier, 4 Duer, 448.

It is obvious that the decision in Didier vs. Warner, 1 C. R., 42, that a mere memorandum indorsed upon the complaint might be held to be an answer, is wholly exceptional.

The defendant, at the time of putting in such answer, must not be in default, either actually or by imputation. Thus, where two defendants put in a joint answer, after the time of one had expired, the plaintiff was held entitled to return such answer, and to take judgment, though, had he answered alone, the other defendant was still in time. Jaques vs. Greenwood, 1 Abb., 320.

The different questions as to the verification, or omission to verify an

answer, when made, and those in relation to its formal preparation and service, have been considered in earlier portions of this work.

The provision of rule 19, prescribing the separate statement and numbering of defences, must also be strictly complied with.

(b.) RELIEF AS BETWEEN CO-Defendants.

The answer must be directed to meet the plaintiff's case only; and any extraneous matter is redundant, and may be stricken out on application. Thus, where the answer stated no facts amounting to a defence, but was solely directed to the adjudication of equities as between co-defendants, the whole was stricken out, and judgment ordered for the plaintiff. Woodworth vs. Bellows, 4 How., 24; 1 C. R., 129.

But, where the adjustment of such equities is germane to the object of the suit itself, as in partition or interpleader, the rule will not, of course, apply. See Bogardus vs. Parker, 7 How., 305; Leavitt vs. Fisher, 4 Duer, 1.

(c.) RESTRICTIONS ON ANSWER.

In the following instances, a defendant is restricted as to the nature of the answer to be put in by him:

In a suit removed from a justice's court, on the ground of title to real estate being in question, the defendant can only make the same defence as that made by him before the justice. Code, section 60. Though so limited, he is at liberty, however, to vary its wording, or to abandon it in part. See, heretofore, under the head of Justices' Courts, book I., chapter VI., section 24, and sundry cases, especially Wiggins vs. Tallmadge, 7 How., 404, there cited.

When the defendant is a joint-debtor, and has been served with a summons to show cause why he should not be bound by a previous judgment, under chapter II., title XII. of the Code, he is precluded from raising the defence of the statute of limitations. Section 379.

And in cases where an analogous proceeding is taken against parties interested in the real estate of a deceased judgment-debtor, under section 376, the power of defence is still more restricted. Nothing can be interposed by such parties, beyond a denial of the judgment, or any defence which may have arisen subsequently. Section 379.

(d.) GENERAL OBSERVATIONS.

A feme covert, sued jointly with her husband, need no longer apply for leave to answer separately, as under the former practice. Harlay vs. Ritter, 18 How., 147. Nor, since the last amendment of section 114, is it any longer necessary for her to be represented by her guardian or