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of action in the complaint, and state which he will rely on; and that on such election the other cause of action be stricken out; or in default of so electing, then the second cause of action be stricken out as redundant.

FORM No. 1098 Order requiring election between several counts setting forth the same cause

of action. [Caption (court order) and recitals according to the case, as in

Form 820, p. 1174 of this volume.] ORDERED, 1. That the plaintiff, within days after the service of a copy of this order elect between the first stated cause of action and the second stated cause of action in his complaint herein [by paying the costs hereinafter mentioned and serving upon defendant's attorney an amended complaint containing only a statement of the cause of action so elected.]

2. That in default of so electing, the [second] cause of action be stricken out as redundant [or, irrelevant, or both]. 3. That the plaintiff pay to defendant's attorney

dollars

dollars costs of this motion.

Enter: [signature of judge by initials of name and title.]

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ARTICLE X.

REQUIRING REPLY.38

FORMS.

1101. Order compelling a reply.

1099. Affidavit to move to compel a

reply. 1100. Notice of motion to compel

reply.

ich reply ietting up ament served the

FORM No. 1099.

Affidavit to move to compel a reply. [As in Form 1063, to the *. ]

II. That the summons and complaint herein were served upon him on the day of , 19 ; that on the day of

, 19 , the attorney for deponent served upon the plaintiffs' attorney an answer setting up among other defenses [state the defense to which reply is desired.]

II. That the deponent is advised by counsel M. N., who resides at

that it is necessary for the proper defense of this action that he should be informed before the trial in what way the plaintiff expects to meet his aforesaid defense, and that a reply for that purpose is necessary and proper. [May add facts tending to show embarrassment unless reply is ordered.]

III. [If order to show cause is asked, add as directed on p. 1171 of this volume]. [Jurat.]

[Signature.] FORM No. 1100.

Notice of motion to compel a reply. [Title of court and action.]

Please take notice, that upon [the annexed affidavit of Y. Z., verified on the day of , 19, and] the pleadings in this

36 The defendant alone is given authority to apply to the court to compel a reply to the new matter constituting a defense by way of avoidance. Code Civ. Pro., Š 516; Sterling v. Met. Life Ins. Co., 6 N. Y. St. Rep. 96; McDonald 0. Davis, 1 Monthly L.

A reply will not be directed when the only purpose is to relieve defendant from the necessity of proving the facts which he sets up in his answer by way of avoidance. Masters v. De Zavala, 48 App. Div. 269, 62 N. Y. Supp. 791, 7 Anno. Cas. 286.

Bul. 20.

action, the undersigned will move this court at a Special Term thereof, to be held at the County Court House [or, City Hall], in the city of on the day of

, 19, at the opening of the court [or, at o'clock in the

noon), or as soon thereafter as counsel can be heard, for an order requiring the plaintiff to reply to the answer herein (or if to a part only, indicate what, as thus: to the new matter set up in the answer herein-or, to the first defense in the answer herein — or, to such of the answer herein as sets up payment to plaintiff's assignee as a defense to this action], or for such other and further relief as may be just. [Date.]

[Signature and office address of],

Attorney for [moving party). [Address, To

Attorney for [adverse party).

FORM No. 1101.

Order compelling a reply. [Title (court order) and recitals, according to the case. See

Form 820, p. 1174.] ORDERED, That within twenty days from the service of a copy of this order, the plaintiff serve a reply to the new matter contained in the answer herein [or, to the new matter contained in that part of the answer herein which is therein alleged as the second defense.

Enter: [signature of judge, by initials of name and title.]

ARTICLE XI.

JUDGMENT ON THE PLEADINGS.

FORMS.
I. ON ADMISSIONS.

admitted cause of action, less 1102. Notice of motion for judgment

admitted counterclaim. on complaint and answer, 1107. Order for judgment by the which raise only a question

court, on admitted cause of of law.

action, less admitted counter1103. Notice of motion for judgment

claim.
for relief admitted by the
answer to be due.

II. ON FRIVOLOUS PLEADING. 1104. Order for judgment for sum ad 1108. Notice of motion for judgment mitted by the answer to be

on a frivolous pleading. due.

1109. Order for judgment on a friv1105. Admission by plaintiff of de

olous pleading. fendant's counterclaim.

1110. The same; granting leave to 1106. Judgment entered by clerk on

amend. [For judgment on default of pleading, or on a trial of the issues whether of law or fact, see Trial and Judgment.]

I. ON ADMISSIONS.

FORM No. 1102. Notice of motion for judgment on complaint and answer, which raise only a

question of law.37 [Title of court and action.]

Please take notice, that on the pleadings in this cause [and on the records of this court, referred to in the complaint and answer), the undersigned will move this court, at a Special Term thereof, to be held at the county court house [or, city hall], at , in the county of , on the day of , 19 , at the opening of court [or, at o'clock in noon), or as soon thereafter as counsel can be heard, for judgment as prayed for in the complaint, or for such further or other relief, or such order as to the court may seem proper. [Date.]

[Signature and office address of],

Plaintiff's attorney. [Address] To

Attorney for

37 Where there is no issue to be de. termined by evidence, and no trial being necessary, beyond an application of the law to the facts, plaintiff may apply to the courts, at Special Term, for judgment on the pleadings. People v. Northern R. R. Co., 42 N. Y.

217, aff'g 53 Barb. 98. See, also, Albany Sav. Inst. v. Burdick, 87 N. Y. 40.

In Havemeyer v. Brooklyn Sugar Refining Co., 26 Abb. N. C. 157, the court allowed a defendant to make such motion.

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FORM No. 1103. Notice of motion for judgment for relief admitted by the answer to be due.38 [Title of court and action.]

Please take notice, that on the pleadings in this cause39 the undersigned will move this court at a Special Term thereof, to be held at the county court house [or, city hall], on the day of , 19 , in the city of , in the county of

, at the opening of court [or, at o'clock in the noon], or as soon thereafter as counsel can be heard, for an order granting judgment for [the sum of dollarsto], admitted by the answer herein to be due the plaintiff [and directing that the action herein be severed; and if the plaintiff so elect, that it be continued as to the remainder of the claim set up in the complaint, with like effect, as to all subsequent proceedings, as if it had been originally brought for the remainder of the claim), or for such other and further relief as may be just (with the costs of this motion]. [Date.]

[Signature and office address of],

Attorney for [moving party]. [Address] To

Attorney for [adverse party).

38 Under N. Y. Code Civ. Pro., 8 511, application for this discretionary order must be made to the court, and upon general principles should be made upon notice, although the statute does not expressly provide for notice. See Vol. I, pp. 87, 88. And the court has power to grant it without notice. Shaw v. Coleman, 3 N. Y. St. Rep. 534, 54 Super. Ct. 3.

The admission must be uncondi. tional. Foster v. Devlin, 57 N. Y. Super. Ct. 120, 6 N. Y. Supp. 505; Burgess v. House, 49 App. Div. 383, 63 N. Y. Supp. 512. The answer must be in such form that the court, upon an inspection of the pleadings, can determine the amount admitted (ex. pressly or by not denying) to be due. New York Wire Co. v. Westinghouse Co., 85 Hun, 269, 32 N. Y. Supp. 1127. An offer of judgment served with the answer is not available on this motion. Id. And an accepted offer of judgment, not made applicable to any one cause of action, is a settlement of all the causes of action included in

the complaint, so that there can be no severance of actions. Walsh t. Empire Brick, etc., Co., 90 App. Div. 498, 85 N. Y. Supp. 528. So, taking judgment under section 511 for the amount admitted to be due waives interest on that sum not also admitted by the answer to be due. Bronx Gas, etc., Co. v. New York, 29 Misc. 402, 60 N. Y. Supp. 548.

For another remedy, where possession is admitted, and an order enforcible by proceedings for contempt may be had, see p. 1142 of Vol. I.

39 Usually an affidavit is not essential, unless an order to show cause is asked, in which case, under the New York rule, there should be an affidavit, for the requirement of which, see Form No. 817, p. 1172, of this volume.

40 May ask specific or equitable relief if the ground therefor is admitted. Hall v. Holt, 25 Hun, 277 (foreclosure; judgment granted upon plaintiff's application for amount admitted by answer to be due).

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