CHAPTER VI. Pleadings in Courts of Record, including Counterclaims. TITLE I. The Consecutive Pleadings in an Action. TITLE II - Provisions Generally Applicable to Pleadings. TITLE I. The consecutive pleadings in an action. Article 1. Complaint. 2. Demurrer. 3. Answer. 4. Reply. ARTICLE FIRST. Complaint. Sec. 478. First pleading to be complaint. 479. Copy complaint. when to be served. 480. Consequence of failure. 481. Complaint; what to contain. 482. When interlocutory and final judgment may be demanded. 483. Causes of action to e separately stated. 484. What causes of action may be joined in the same complaint. § 478. First pleading to be complaint. The first pleading, on the part of the plaintiff, is the complaint. Co. Proc., § 141. § 479. [Am'd, 1877.] Copy complaint, when to be served. If a copy of the complaint is not delivered to a defendant, at the time of the delivery of a copy of the summons to him, either within or without the State, his attorney may, at any time within twenty days after the service of the summons is complete, serve upon the plaintiff's attorney a written demand of a copy of the complaint, which must be served within twenty days thereafter. The demand may be incorporated into the notice of appearance. But where the same attorney appears for two or more defendants, only one copy of the complaint need be served upon him; and if, after service of a copy of the complaint upon him, as attorney for a defendant, he appears for another defendant, the last defendant must answer the complaint within twenty days after he appears in the action. Substitute for part of § 130, Co. Proc. See post, § 824. See §§ 419, 422. § 480. Consequence of failure. If the plaintiff's attorney fails to serve a copy of the complaint, as prescribed in the last section, the defendant may apply to the court for a dismissal of the complaint. § 481. [Am'd, 1904, 1905.] Complaint; what to contain. The complaint must contain: 1. The title of the action, specifying the name of the court in which it is brought; it it is brought in the supreme court, the rame of the county, which the plaintiff designates as the place of trial; and the names of all the parties to the action, plaintiff and defendant. 2. [Am'd, 1904, 1905.] A plain and concise statement of the bets constituting each cause of action without unnecessary Tepetition. 3. A demand of the judgment to which the plaintiff supposes imself entitled. Co. Proc., § 142, am'd; L. 1904, ch. 500; L. 1905, eh. 431. In effect May 16, 105. § 482. [Am'd, 1877.] When interlocutory and final judgment may be demanded. In an action triable by the court, without a jury, the plaintiff may, in a proper case, demand an interlocutory judgment, and also a final judgment, distinguishing them clearly. § 483. Causes of action to be separately stated. Where the complaint sets forth two or more causes of action, the statement of the facts constituting each cause of action must be separate and numbered. From Co. Proc., § 167, am'd. { 484. [Am'd, 1877, 1900, 1906, 1907.] What causes of action may be joined in the same complaint. The plaintiff may unite in the same complaint, two or more Tises of action, whether they are such as were formerly deminated legal or equitable, or both, where they are brought i recover as follows: 1. Upon contract, express or implied. 2. For personal injuries, except libel, slander, criminal conTersation or seduction. 3. For libel or slander. 4. For injuries to real property. 3. Real property, in ejectment, with or without damages for the withholding thereof. (See § 1496.) 6. For injuries to personal property. 7. Chattels, with or without damages for the taking or detention thereof. (See § 1689.) S. Upon claims against a trustee, by virtue of a contract, or by operation of law. 9. Upon claims arising out of the same transaction, or transactions" connected with the same subject of action, and not inCoded within one of the foregoing subdivisions of this section. De ; 1815. 10. For penalties incurred under the fisheries, game and forest 11. For penalties incurred under the agricultural law. 12. For penalties incurred under the public health law. But it must appear, upon the face of the complaint, that all causes of action, so united, belong to one of the foregoing ivisions of this section; that they are consistent with each er; and, except as otherwise prescribed by law, that they t all the parties to the action; and it must appear upon the e of the complaint, that they do not require different places tral tute for part of § 167, Co. Proc. L. 1900, ch. 590; L. 1906, ch. 29; eh. 21. In effect Sept. 1. 1907. la 1 485. [Stricken out in 1877.] 1 486. [Stricken out in 1877.] Sec. 487. Defendant must demur or answer. 488. When he may demur. 489. [Stricken out. 490. Demurrer to complaint must specify grounds of objection. 491. [Stricken out.] 492. Demurrer to all or part of the complaint; demurrer to part, and answer to part. 493. Defendant may demur to reply. 494. When plaintiff may demur to answer. 495. Demurier to counterclaim, when uerendant demands an affirmative 496. Demurrer to counterclaim must specify grounds of objection. 498. When objection may be taken by answer. 499. Objection; when deemed waived. § 487. Defendant must demur or answer. The only pleading, on the part of the defendant, is either a de murrer or an answer. Co. Proc., part of § 143. § 488. [Am'd, 1877.] When he may demur. от demur to the complaint, where one more of the following objections thereto appear upon the face thereof: 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties, for the same cause. 5. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties, plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to constitute a cause of action. Id., § 144, am'd by adding subd. 5. § 489. [Stricken out in 1877.] § 490. [Am'd, 1877.] Demurrer to complaint must specify grounds of objection. The demurrer must distinctly specify the objections to the complaint; otherwise it may be disregarded. An objection, taken under subdivision first, second, fourth, or eighth of section four hundred and eighty-eight of this act, may be stated in the language of the subdivision; an objection, taken under either of the other subdivisions, must point out specifically the particular defect relied upon. First sentence Co. Proc., part of § 145. § 491. [Stricken out in 1877.] § 492. Demurrer to all or part of the complaint: demurre to part, and answer to part. The defendant may demur to the whole' complaint, or to one or more separate causes of action, stated therein. In the latter case he may answer the causes of action not demurred to. Co. Proc., § 145, 2d sentence, consolidated with id., § 151. § 493. Defendant may demur to reply. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defence or counterclaim, contained in the reply, on the ground that it is insufficient in law, upon the face thereof. Substitute for Co. Proc., § 155. § 494. When plaintiff may demur to answer. The plaintiff may demur to a counterclaim or a defence consist ing of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof. Id., part of § 153. § 495. [Am'd, 1877.] Demurrer to counterclaim, when defendant demands an affirmative judgment. The plaintiff may also demur to a counterclaim, upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counterclaim: 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to recover upon the same. 3. That there is another action pending between the same parties, for the same cause. 4. That the counterclaim is not of the character specified in section 501 of this act. 5. That the counterclaim does not state facts sufficient to constitute a cause of action. 1496. [Am'd, 1877.] Demurrer to specify grounds of objection. counterclaim must A demurrer, taken under the last section, must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same, as where a demurrer is taken to a complaint. } 497. [Am'd, 1877.] Amendments in certain cases after decision of demurrer. Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discretion, allow the party in fault to plead anew or amend, upon such terms as are just. If a demurrer to a complaint is allowed, becanse two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions, as are necessary for the proper determination of the causes of action therein stated. Co. Proc., part of § 172. | 498. [Am'd, 1877.] When objection may be taken by answer. Where any of the matters enumerated in section four hundred and eighty-eight of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer. 14., 147. § 499. Objection; when deemed waived. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action. |