515. Judgment upon failure to reply.

516. Cases where the court may require a reply.

517. Plaintiff may set forth several avoidances in reply.

§ 514. Reply; what to contain.

Where the answer contains a counter-claim, the plaintiff, if he does not demur, may reply to the counter-claim. The reply must contain a general or specific denial of each material allegation of the counterclaim, controverted by the plaintiff, or of any knowledge or information thereof sufficient to form a belief; and it may set forth in ordinary and concise language, without repetition, new matter not inconsistent with the complaint, constituting a defence to the counter-claim. From Co. Proc. § 153. Am'd by ch. 416 of 1877. See $ 500.

§ 515. Judgment upon failure to reply.

If the plaintiff fails to reply or demur to the counter-claim, the defendant may apply, upon notice, for judgment thereupon: and, if the case requires it, a reference may be ordered, or a writ of inquiry may be issued, as prescribed in chapter eleventh of this act, where the plaintiff applies for judgment.

From Co. Proc. § 154.

See § 1219.

§ 516. Cases where the court may require a reply. Where an answer contains new matter, constituting a defence by way of avoidance, the court may, in its discretion, on the defendant's application, direct the plaintiff to reply to the new matter. In that case,

the reply, and the proceedings upon failure to reply, are subject to the same rules as in the case of a counter-claim.

From Co. Proc. § 153.

§ 517. Plaintiff may set forth several avoidances in reply.

A reply may contain two or more distinct avoidances of the same defence or counter-claim; but they must be separately stated and numbered.

Am'd by ch. 416 of 1877.

See & 500.

TITLE II.

Provisions generally applicable to pleadings.

SEC. 518. Application and effect of this chapter.

519. Pleadings to be liberally construed.

520. Pleadings to be subscribed; within what time to be served.

521. When defendant to serve copy answer on co-defendant.

522. Allegation not denied; when to be deemed true.

523. When pleading must be verified; and when verification may be omitted.

524. Form and construction of certain allegations and denials in verified

pleading.

525. Verification; how and by whom made.

526. Form of affidavit of verification.

527. When verification may be confined to a counter-claim.

528. Remedy for defective verification, or want of verification.

529. When defendant not excused from verifying answer to charge of

fraud.

530. Private statute; how pleaded.

531. Account; how pleaded.

Bill of particulars.

532. Judgments; how pleaded.

533. Conditions precedent; how pleaded.

534. Instrument for payment of money; how pleaded.

535. Pleadings in libel and slander.

536. Pleading mitigating circumstances, in action for a wrong.

537. Frivolous pleadings: how disposed of.

538. Sham defenses to be stricken out.

539. Material variances; how provided for.

540. Immaterial variances; how provided for.

541. What to be deemed a failure of proof.

542. Amendments of course.

543. Amended pleading to be served; answer thereto.

14. Supplemental pleadings.

545. A motion to strike out irrelevant, etc., matter.

546. Indefinite or uncertain allegations.

547. Determination upon the exception; costs; when the attorney may be ordered to pay costs. [Repealed.]

§ 518. Application and effect of this chapter.

This chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined, except where special provision is otherwise made by law.

From Co. Proc. § 140.

See rule 19 (Sup. Ct.).

See § 1511, 1775, 1776, 1962, 3347, sub. 4.

§ 519. Pleadings to be liberally construed.

The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties.

From Co. Proc. § 159.

See § 1770.

§ 520. Pleadings to be subscribed; within what time to be served.

A pleading must be subscribed by the attorney for the party. A copy of each pleading, subsequent to the complaint, must be served on the attorney for the adverse party, within twenty days after service of a copy of the preceding pleading.

From Co. Proc. § 156.

See § 55.

§ 521. When defendant to serve copy answer on co-defendant.

Where the judgment may determine the ultimate rights of two or more defendants, as between themselves, a defendant, who requires such a determination, must demand it in his answer, and must, at least twenty days before the trial, serve a copy of his answer upon the attorney for each of the defendants, to be affected by the determination, and personally, or as the court or judge may direct, upon defendants so to be affected who have not duly appeared therein by attorney. The controversy between the defendants shall not delay a judgment, to which the plaintiff is entitled, unless the court otherwise directs.

Am'd by ch. 400 of 1884.
See 1204.

§ 522. Allegation not denied; when to be deemed true. Each material allegation of the complaint, not controverted by the answer, and each material allegation of new matter in the answer, not controverted by the reply, where a reply is required, must, for the purposes of the action, be taken as true. But an allegation of new matter in the answer, to which a reply is not required, or of new matter in a reply, is to be deemed controverted by the adverse party, by traverse or avoidance, as the case requires.

From Co. Proc. § 168.

§ 523. When pleading must be verified; and when verification may be omitted.

Where a pleading is verified, each subsequent pleading, except a demurrer, or the general answer of an infant by his guardian ad litem, must also be verified. But the verification may be omitted, in a case where it is not otherwise specially prescribed by law, where the party pleading would be privileged from testifying, as a witness, concerning an allegation or denial contained in the pleading. A pleading cannot be used in a criminal prosecution against a party, as proof of a fact admitted or alleged therein.

From Co. Proc. § 156; id.; § 157.

§ 524. Form and construction of certain allegations and denials in verified pleading.

The allegations or denials in a verified pleading must, in form be stated to be made by the party pleading. Unless they are therein stated to be made upon the information and belief of the party, they must be regarded, for all purposes. including a criminal prosecution, as having been made upon the knowledge of the person verifying the pleading. An allegation that the party has not sufficient knowledge or information to form a belief, with respect to a matter, must, for the same purposes, be regarded as an allegation that the person verifying the pleading has not such knowledge or information.

See $ 526.

§ 525. Verification; how and by whom made.

The verification must be made by the affidavit of the party, or, if there are two or more parties united in interest, and pleading together, by at least one of them, who is acquainted with the facts, except as follows:

1. Where the party is a domestic corporation, the verification must be made by an officer thereof.

2. Where the people of the State are, or a public officer, in their behalf, is the party, the verification may be made by any person acquainted with the facts.

3. Where the party is a foreign corporation; or where the party is not within the county where the attorney resides, or, if the latter is not a resident of the State, the county where he has his office, and capable of making the affidavit; or, if there are two or more parties united in interest, and pleading together, where neither of them, acquainted with the facts, is within that county, and capable of making the affidavit; or where the action or defence is founded upon a written instrument for the payment of money only, which is in the possession of the agent or the attorney; or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney; in either case the verification may be made by the agent of or the attorney for the party.

From Co. Proc. § 157.

Am'd by ch. 542 of 1879.
See § 526.

§ 526. Form of affidavit of verification.

The affidavit of verification must be to the effect, that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Where it is made by a person, other than the party, he must set forth, in the affidavit, the grounds of his belief, as to all matters not stated upon his knowledge, and the reason why it is not made by the party.

From Co. Proc. § 157.

See § 524.

$ 527. When verification may be confined to a counterclaim.

Where the complaint is not verified, and the answer sets up a counterclaim, and also a defence by way of denial or avoidance, the affidavit of verification may be made to refer exclusively to the counter-claim. In that case, the last three sections are applicable to the affidavit and the counter-claim, as if the latter was a separate pleading.

§ 528. Remedy for defective verification, or want of verification.

The remedy for a defective verification of a pleading is to treat the same as an unverified pleading. Where the copy of a pleading is served without a copy of a sufficient verification, in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice, with due diligence, to the attorney of the adverse party, that he elects so to do.

§ 529. When defendant not excused from verifying answer to charge of fraud.

A defendant is not excused from verifying his answer to a complaint. charging him with having confessed or suffered a judgment, or executed a conveyance, assignment or other instrument, or transferred or delivered money, or personal property, with intent to hinder, delay, or defraud his creditors; or with being a party or privy to such a transaction

by another person, with like intent toward the creditors of that person; or with any fraud whatever, affecting a right or the property of another. From 2 R. S. 174, Part 3, ch. 1, tit. 2, § 41 (2 Edm. 181); and ch. 14 of 1833, (4 Edm. 531).

§ 530. Private statute; how pleaded.

In pleading a private statute, or a right derived therefrom, it is sufficient to designate the statute by its chapter, year of passage and title, or in some other manner with convenient certainty, without setting forth any of the contents thereof.

§ 531. Account; how pleaded. Bill of particulars.

It is not necessary for a party to set forth, in a pleading, the items of an account therein alleged; but in that case he must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, which, if the pleading is verified, must be verified by his affidavit, to the effect that he believes it to be true; or, if the facts are within the personal knowledge of the agent or attorney for the party, or the party is not within the county where the attorney resides, or capable of making the affidavit, by the affidavit of the agent or attorney. If he fails so to do, he is precluded from giving evidence of the account. The court, or a judge authorized to make an order in the action, may direct the party to deliver a further account, where the one delivered is defective. The court may, in any case, direct a bill of the particulars of the claim of either party to be delivered to the adverse party.

From Co. Proc. § 158.

§ 532. Judgments; how pleaded.

In pleading a judgment, or other determination of a court or officer of special jurisdiction, it is not necessary to state the facts conferring jurisdiction; but the judgment or determination may be stated to have been duly given or made. If that allegation is controverted, the party pleading must, on the trial, establish the facts conferring jurisdiction. From Co. Proc. § 161.

§ 533. Conditions precedent; how pleaded.

In pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state, generally, that he, or the person whom he represents. duly performed all the conditions on his part. If that allegation is controverted, he must, on the trial, establish performance.

From Co. Proc. § 162.

§ 534. Instrument for payment of money; how pleaded. Where a cause of action, defence, or counter-claim, is founded upon an instrument for the payment of money only, the party may set forth a copy of the instrument, and state that there is due to him thereon. from the adverse party, a specified sum, which he claims. Such an allegation is equivalent to setting forth the instrument, according to its legal effect.

From Co. Proc. 162.

§ 535. Pleadings in libel and slander.

It is not necessary, in an action for libel or slander, to state in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may