INDEX. ABATEMENT, (see Party,) Vrooman agt. Jones, 369. ACTIONS, against makers and endorsers of a promissory note, when united In actions for tort, commenced before the Code, a defendant on whom he is nominally a party and interested. id. Action for recovery of possession of personal property, (see Claim and Several causes of action in slander can not be united, unless they are see Pleading, 188. An action to recover personal property can not be maintained where the see further Claim and Delivery. ADMISSION, see Service of Papers, 342. AFFIDAVIT OF MERITS, an affidavit of "a defence in the action," with- An affidavit of merits for the purpose of being let in to defend in a com- AMENDMENT, the plaintiff has no right to amend his complaint by striking see Answer, 206. Amendment of summons will not support a judgment which is irregular 241. Index. Although § 172 of the Code allows an amendment of a pleading once, of An answer can not be amended in matters of substance, where it sets up see Party, Davis agt. Schermerhorn, 440. plaint, and sets ANSWER, an answer is bad where it controverts no allegation of the comup no new matter in bar, but merely denies a conMcMurray agt. Thomas, 14. clusion of law. an answer is bad, which merely alleges that the note sought to be recovered was obtained by fraud, and omits to set out any facts showing the existence of such fraud, id. Where an answer merely denies the facts set up in the complaint, and contains no new matter constituting a defence, plaintiff is not bound to reply thereto. Brown agt. Spear, 146. see Judgment, Tracy agt. Humphrey, 155. Facts which, under the former practice, would have formed ground of relief against a legal demand, upon a bill filed for that purpose, may now be interposed by way of answer in the action on the legal demand. Burget agt. Bissell, 192. Where an answer and demurrer were served on one paper, and reply served to the answer and the demurrer noticed for argument, and afterwards the answer was again served as an amended answer without the demurrer, held plaintiff was not bound to reply again. Howard agt. Michigan Rail Road Co., 206. To authorize an order upon a motion to strike out an answer as frivolous, it must appear that the answer is a "sham pleading" (Code § 152), which does not necessarily follow from its being merely frivolous. Darrow agt. Miller 247. no affidavit need be served on the opposing party with notice of motion for judgment under § 247 id. Where answer admitted execution of note, but as to each and every other allegation, denied sufficient knowledge, &c., (the complaint alleging facts upon which defendant became liable), held, that answer was sufficient. Genesee Insurance Co. agt. Moynihen, 321. see Service of papers, Graham agt. McCoun, 353. An answer in the nature of a plea puis darrien, will not be allowed after two trials, where defendant had knowledge of the facts before answering. Houghton agt. Skinner, 420. see Amendment, 424," Index. A defendant must answer the complaint within the twenty days prescribed by statute, He has no right to answer after the expiration of the twenty days, and before judgment is actually taken. Mandeville agt. Winne, 461. No part of an answer ought to be struck out which can in any event become material. Averill agt. Taylor, 476. defendant may by way of answer, pray for specific relief on his part, in relation to the subject matter of the suit. id. see Williams agt. Hayes, 470. APPEAL, from decision of motion on frivolous demurrer. King agt. Stafford. 30. see Judgment, King agt. Stafford, 30. from a Justice's court taken before the Code. People ex rel Cahoon agt. Dodge, 47. Notice of appeal should be served on the attorney of record in the court below, not on the party. Tripp agt. De Bow, 114. the service of such notice being a jurisdictional question, the party can take advantage of it at any time, if he has not appeared so as to give jurisdiction. id. see Case and Bill of Exceptions. Review in causes referred before the Code. La Wall agt. Grigg, 158. where such notice was served on the clerk and attorney on the last day for bringing the appeal, by depositing in the post office, and were not received by either until two days after the time for appealing had expired, held that the appeal was not taken in time; the service was good upon the attorney (§ 408) but bad upon the clerk. id. under 173 of the Code, the court have power to authorize an appeal, taken after the expiration of the time limited by the Code (§ 332 and 348), to be considered good and valid. id. Index. In respect to causes originating in a Justice's Court, the Supreme Court has merely an appellate jurisdiction. It has no power to review a Judgment rendered by a County Court by default. 323. Dorr agt. Birge, It seems, that by § 405, the time to appeal can in no case be enlarged, see to the same effect, Enos agt. Adams, 361. Contra see Crittenden agt. Adams, 310. from surrogate (see Surrogate), 351-360. from referee's report, (see Review of Referee's Report.) from an order granting an attachment. (see Attachment), 386. On bringing an appeal from a Justice's Court, the payment of the justice's fee for the return must be made at the time of service of the notice of appeal. Van Heusen agt. Kirkpatrick, 422. To the Special Term. an appeal will not lie in the first instance to the general term upon a case containing question of fact alone. Application for a new trial must first be made at the special term. Collin's agt. Albany and Schenectady Rail Road, 435. see Leggett agt. Mott, 4 How. Pr. R. 325; Lusk agt. Lusk, id. 418; Graham agt. Milliman, id. 435.) The time for bringing an appeal to the Court of Appeals begins to run from the making the final order for judgment, and not from the docketing of the judgment roll. Bank of Geneva agt. Hotchkiss, 478. Although it may be necessary to have the costs adjusted and roll filed before bringing the appeal, the appellant has it in his power to coerce this to be done in time. id. APPEARANCE, a defendant can not be legally tried upon an indictment for any offence in his absence, unless he has unequivocally waived his right to be present. People agt. Wilkes, 105. see Lunatic, 109. APPRAISAL OF DAMAGES, (see Practice and Appeal,) 177. ARBITRATION, upon a parol submission, or under a common law arbitration, the arbitrators possess no power to administer a legal oath. People agt. Townsend, 315. ARREST AND BAIL, an affidavit for the arrest of a defendant, for fraud, &c. must state positively facts within the knowledge of plaintiff. And where facts necessarily rest upon information, the source and nature of the information should be set out, and reasons given why a positive statement can not be procured. Whitlock agt. Roth, 143. (see Claim and Delivery), Van Neste agt. Conover, 148, 327. of action exists (§ 179 and 181) the defendant, upon affidavits |