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trihnnal, is not waived by an answer to the merits ( Viuarino v. Thompeon, 8
Belden, 576 ; Ffynn v. Steughton, 5 Barb. 1151 His being impleaded with a
citizen, upon ti joint contract, will not give Jurisdiction toUie State courts (id.
Bock Bioer Bank v. Hoffman, 22 How. 250 ; 510) ; and it seems that the same
rule applies in actions for tort^ {Hemanda v. Gamobeli, 10 How. 488). He is
not only suable in the district courts of the U. S., but if he be an aUen, he ia
suable as such by a citizen in the U. S. circuit courts (St. JaMs Hospital v.
Barda^jBritish eonmd, U. S.^circuit court, southern dist. of N. Y., October,
1865). When the court has once acquired Jurisdiction of a defendant it is not
ousted by his subsequent appointment as a foreign consul (Koppcl v. Heinridce^
1 Barb. 449). If however, on the trial the defect in the complaint is supplied
by the. proof, the objection may be overruled (Lounebury v. Purdsf, 18 N.
Y. 521 ; Bmery v. P^ase, 20 N. Y; 64).

e. Where a defendant upon demurrer to the answer daims that the oom-
plidnt is defective, he must be held to have waived all objections to the com-
plaint not raised by answer or demurrer, except the question of JurisdictiMi
abd the suffldency of the facts stated to constitute a cause of action (The Poo-
pie Y. Banker, SU0W.2SS', WirUerson y. Eighth Aw, R R a>., 2 HUton, 889).

d. The otjection thai the complaint does not state fiicts suffldent to consti-
tute a cause of action, cannot be take n for the first time on appeal (Bope.Y.
Binamore, 8 Abb. 429; Oorkif Y^WOdns, 6 Barb. 558; contra, see (XUY.BkuU^

Obaptbb IIL
The Answer.

filcnoH 149. Answer what to contain.

150. Counter-claim. Several defences.

151. Demurrer and answer, when allowed.

152. Sham and irrelevant defences to be stricken out

f U». [128.] (Am'd 1849, 1851, 1852.) Answer, what to
The answer of the defendant mnst contain, —
1. A general or specific denial of each material allegation
of the complaint controverted by the defendant, or of anj
knowledge or information thereof suflicient to form a bdief ;

Digitized by


§ 149.] jmnkL. ^ 967

S. A ttfttenieDt of any new matter constitritiiig a defence
or counter-claim, in ordinary and concise language, without

«. Tlie answer is not reqwired to be entitled in the action. It aboald, how-
erer, sliow in wiiat soit and for wiMft defendant it is pat in {fiee 1 Code Rep.
4ify It most either controvert a nuterial allegation of the complaint or state
new matter constituting a defence {MsKprinf y. BuO, 16 N. Y\ 807) ; and
where to a complaint for foods sold the defendant answered,— secondly, a de-
nial tbait i^ainkiff ever sold any coods to defendant which had not been paid
fer by the defendant : and thirdly, that if plaintifib ever sold any goods, to de-
fendant they were sold on credit and not to be paid for in nine years from the
day of sale,— on motion these derences were stmok out as neither amounting
to a denial, nor to a statement of new matter (BaimUon y. Ihugh, 18 How

&. It is not eswentiiil to tlie soAdency of an answer that it shcmld constitute
ikdefence oar oounter-daim to tibe whole of the complaint or of any single
eoQttt^ It is sufficient if it oonstitnte a defence or counter-claim to so much as
it professes to answer {MeKyting y. BuU, 16 New York:, 860 ; AOm y. JSiukin$,
^Duer,882; KnoiOerY. Btrnberg, 10 Bxm,m); but if it profess to answer an
cBftiie eause of action and m feot only answers a part it is Insufficient and may
he deraorred to {FoUer y. Hamn, 12 Barb. 547; Beaeh y. Bcarom, 18 Barb. 806;
Thumbr, W^i^ral^, 6 How. 196 ; WiZZwy. Taggard, id. 488; Ifiehois y. Ihmn^
ipy, 2 Ooms. 288 ; ^owk y. Ftiiard, 6 Black£ 106 ; and see Htkideg y. Grot-
>MM, id. 86); if the defence professes to be part only of a cause of action with-
out spedQnng what part, it is sofficient Jaluioagh indefinite] if it is an ijOBwer
to any part {ChUingham y. The 8kae, 7 Blackf. 406) ; but it is said that if it
apaciry the part to which it is intended as an answer it is limited to that part,
aJthoc^ in feet an answer to the whole (Orom y. Waiaon, 6 Black£ 129).
The parts of the complaint to which the answer is intended to apply, should
be so deariy defined as that the court, on looking at the complaint, can de-
termine what parts ^e covered by it and what ^are not (Dammn v. Sehermer-
k§fn\ 1 Barb. iS^). Where in an acdon for an assault and felse imprisonment,
the answer assumed to be to the whde complaint but justified only the im-
.unaonment, it was on demurrer hdd bad {Foiter v. Hcmen, 12 Barb. 547).
%be answer must address itsdf to the complaint, and not to the bill of
particulars (Krem v. 8digmta^ 8 Barb. 489 ; aeaoeB, v. HofDdl, 2 Code R 88).

«. ** A defendant has a right to conrider the complunt which is served up-
on hiin^ or his attorney, as that albne which he is required to answer, and
tliat it is upon the issues raised by his answer to this ciMnplaint that the cause
is to be tried** {Trowbridge y. IHdier, 4 Duer, 450; £ftifl*a« v. Wood, 6 «. 608,
note; Graham v. JfcO^ 5 How. 858 ; 1 Code Rep. N. 8. 48; LiUl^n v.
ifuwn, 3 Paige, 280).

4, Several defendants.— In actions against several defendants, it is some-
times better that each defendant answer separately as when in trespass for
executing process, the officer and the plaintifT in the process are sued together
^ee 2 Sannd. PI. and By. 18, 19).

e. Semble, aU dilatory defenses must be common to all) and pleaded by all
the defendants (HurUg v. 8eeond Bldg Am, 15 Abb. 206, note).

f.'JsiaJi action a£;ainst several executors, such of them as are first served
witii process, or nrst appear, are entitled to answer for the estate, and one
answer being in it is irregular for the other executor to answer {SaUers v.
Prt^/n^ 15 Abb. 224), But the plaintiff waives the irr^larity by not return-
ing the answer or moving to strike it out. {Jd.) If there is any collusion between
the plaintiff and the executor who first answers, the other executors should
obtain leave to put in a separate answer. (Id.)

g, DeniaUk — A general and a spodfic denial <^ the same matter is not
aUo«edl2>0nnM(mv.iV/^n««m,9Biaw.246; Blake v. Bld/red^ 18 How. 240).
One of SQch denials will be struck out as redundant. Defendant wiU have
his option as to which he will retain, (/d.)



368 AK8WBR. [$1^9

a Geneial denSaL— A general denial is a denial in grooi of all the alhiga^
tions of the complaint, and a ftpecific denial is a denial of one or of each al
1e«ition Beparately {Denniacm y. DmrvUon^ 9 How. 247 ; SeoxsTd ▼. MiOn^ 6 td
313, and other cases). The usual form of general denial is, *' the defendant
denies each and every allegation of the complaint'* (KeUog y. Ohurdt^ 4 How.
389 ; Badde y. Buekgaber, 8 Duer, 684). A defendant after expressly admit-
ting some of the allegations of the complaint may make a denial *' of all the
all^ations in the complaint not herein before specifically [expressly] admit-
ted^ (Par$haU v. TUkm, 18 How. 7; Genesee Ifut. Ine. Go, y. MoynShen, 5 id,
321 ; Smith y. WeOe, 20 How. 158; 144; 6 id, 148). A statement that the de-
fendant denies all those allegations which are contained within jcertain speci-
fied folios, is good as a general denial (Gaeeett y. Oroeker, 9 Abb. 89 ; see Bkihe
y. Bldredy 18 How. 240). Denying aAd saying he denies is dififerent (id. / At-
thur y. Brooke, 14 Barb. 585).

b. To a complaint for goods sold, alleging the sale and that the defendant
is noto indebted to the plaintiff therefor, the defendant answered admitthig the
^e, but alleging that the purchase was on a credit of six months, and that
cerdit had not expired ; held that the answer was a " tpedal denial of the alle-
gation in the complaint," that the defendant is lune indebted to the pMntift
{Gilbert y. Oram, 12 How. 465).

c. Where the allegations of a complaint are not directly denied, but the de-
fendant states other facts inconsistent with those set forth by the plaintiff,—
this will not be constructed as a denial so as to prevent the allega^ons of the
<XHnplaint from being taken ub true : merely n^aking a counter-statement or
giving a different version of the matter from that contained in .the complaint,
without denying the allegations of the complaint, is not epec^teaXby controvert-
ing such alle^tions (Wood v. WhiUng, 21 Barb 190). Thus, where the com-
plaint alleged that G delivered to the defendant for collection, certain ac-
counts, for which defendant save G a recdpt and promised to pay over said
money when received ; that defendant collected said money and n^lected to
pay the same to said G, and that G had assigned his claim to the plaintiff,—
an answer which stated that G was a partner of one B, as manufkcturers of
grain cradles, which were sold by them on credit, and Uie said amounts were
demands of G. <& B. and not of G, was held not to epeafloaOy controvert the al-
legations of the complaint (/d; see Gilbert v. Oramy 12 How. 455 ; HamOtion
V. Hough, 18 How. 14 ; Bke v. Tuoker, 5 Duer, 898; Looeey v. Orser, 4 Boew.
892). To a complaint setting forth an agreement with several clauses between
the plaintiff and defendant, &e defendant answered that the agreement was
** incorreeUy eicUed " in the complaint, and then proceeded specmcally to con-
trovert several parts of it, and without any further or general denial, — it was
held that the parts not specificallv denied were admitted (Levy v. Bend, 1 &
D. Smith, 169). An allegation thaX defendant does not know of his informa-
tion or otherwise that the plaintiff had commenced the action in the complaint
mentioned, is not a denial {Sai^e v. Gushing, 7 Abb. 871).

* d. Denial d any knowledge or information, &o.-— A denial as to a mate-
rial allegation, or as to all the allegations of a complaint of any knowledge or
information sufficient to form a beuef, forms a complete issue, and in no case
can an answer containing such a denial be successfully demurred to (ZtMii^
eton V. Hammer, 7 9osw. 670 ; Ketcham v. Zerega, 1 E. D. Smith, 554) ; nor eem-
hie, can judgment be given thereon as frivoloua {Id.) Such a denial may be
struck out as false or sham in any case where it is to be plainly seen that de-
fendant had, in'&ct, knowledge or information sufficient to form a belief {Ed-
tnards v. Lent, 8 How. 2S ; Ketcham v. Zerega, 1 B. D. Smith, 554; KeOom y.
Baker, 15 Abb. 287) ; or has ready means of obtaining the knowledge (id ;
Bance v. Beming, 1 Code R. N. 8. 204); or the fact is presumptively in his
knowledge {Sherman v. N. Y, Central MiUe, 1 Abb. 187 ; Fales y. Mck$, 12
How. 158) ; although the answer be yerificd {Fales v. Hicks, 12 How. 158 ;
Chapman v. Palmer, 12 How. 88). Thus such a denial was struck out in an
action for an assault where it was applied to the assault {Biehardson y. WiUon,
4 Sand. 708) ; and so where the contents of an instrument executed by the de-
fendant was thus denied, the denial was struck out ( Wesson v. Jvdd, 1 Abb.

Digitized by


§ 149.] DKNur. '16i^

2M; flee, howerer, EeBoffg t. Baker, 15 Abb. 287) ; and in an action against
partneis as makers of a promissory note, such a denial of making the note was
•track out {MaU V. Burt&U, 1 C5ode Rep. N. S. 225 ; 2 E. D. Smith, 50). In an
action on a bond executed by the defendant as surety, conditioned to be void
if the plaintiff recovered judgment against C, such a denial of the recovery of
the Judgment was struck out {ffance y. Roming, 1 Code Rep. N. 8. 204 ; 2 £.
D. SmiUi, 48). In an action against partners for goods sold and delivered, such
a denial of the sale and one partner was struck out (Gkapman v.
Balmer, 12 How. 38). Such a denial of a judgment obtained against the de-
Hsndant was struck out {Keteham v. Zerega, 1 £. D. Smith, 555) ; and in an ac-
tion for fiUse imprisonment on process, such a denial of causing the process to
issue was struck out as sham {Lawrence v. Derby ^ 15 Abb. 346, n). And such a
denial of the transfer of a note by the defendant was struck out {Falee-v. Hickt,
12 flow. 153). But the maker of a promissory note, sued with the endorser
in one action, may adopt this mode of denjring that the other defendant en-
dorsed the note, or its presentment fbr payment {Flood v. Bevnolds, 18 How.
112 ; Sherman v. Bwihndl, 7 «l 171 ; Thorn v. N, Y. Central MiOs, 10 How. 20;
Batt lUver Bank v. Rogers, 7 Bosw. 497 ; Duncan v. Lawrence, 6 Abb. 804 ; 8
Bosw. 103). A defendant is not presumed to know the date of an instrument
not in his possession or control, and as to such date may deny any knowledge
{^M)gg V. Baker, 15 Abb. 287). To a complaint by an administrator setting
forth the death of the iotestate, the granting of letters of administration to the
plaintiff, and that he is informed and believes the defendant is indebted to him
for coal sold by intestate to defendant, the defendant answered denying any
knowledge or information, <&c., whether he is indebted to plaintiff. The
plaintiff moved to strike out the answer as frivolous ; the motion was denied
Uforrow V. Oougan, 8 Abb. 328); for although the defendant must have had
Knowledge as to the sale of the coal, yet he might well be ignorant of the death
ofthe intestate, or the granting of letters of administration to the plaintiff.
(i3.) [The decision was influenced by the vagueness of the complaint]

a. The allegation of a defendant brought in by supplemental complaint, of
his ignorance as to a fact admitted by the answer of the original defendant, to
whose interest he has succeeded, does not put such fact in issue {Forbee v.
WaUer, 25 N. Y. 480).

b. In an action in which the complaint alleged the making a note bv the de-
fendants, and that they *' thereupon indorsed and' delivered the same to die fXrnn-
Uff$" and that the plamtifis were the lawfbl holders and owners of the note ;
the answer denied that the defendants ever indorsed the note to the plaintifls,
or ever delivered said note to them, and further denied any knowledge or in-
formation sufflciait, <&c., whether or not the plaintifls are the lawful holders
and owners of said note. This answer was held frivolous {Kamlah v. Scdier, 6
Abb. 226;see,<9t?n^ra, Temple y. Murray, mioyr. 929; Snyder Y.White, id. 921;
Genesee Mutual Im. Oo, v. Moynihen^ 5 id 821 ; and see in note to section 247,

e. Fonn of denial of cmiy knowledge, &o. — A denial of " any knowledge
or information sufficient to form a belief," makes a complete denial ; and the
defendant need not and should not add ** and therefore he denies the same "
(Iflood V. Beynolde, 18 How. 112 • Lea4^ v. Boynion, 8 Abb. 8 ; TcwmeendY. PlaU^
id, 885 ; King v. Bay, 11 Paige, 286 ; Limngston v. Hammer, 7 Bosw. 670). And
it will be observed, that where the defendant has made an insufficient allega-
tion ofthe want of any knowledge or information, and has followed such alle-
gation by the further allegation " and therefore he denies," &c., this fUrther al-
legation has been disregarded (see Chapman v. Palmer, 12 How. 88 ; Edwardu
T. Lent, 8 id. 28). A denial of knowledge, without adding information, would
not be sufllcient {Edwards v. Lent, id. ; and see The Peop5 v. McCumber, 15 id,
180 ; KetOiam v. Zerega, 1 R D. Smith, 554) ; nor is it sufficient for a defendant
to say he is ignorant of whether or not the facts allied against him are or not
ime (Wood v. Staniels, 8 Ckkle Rep. 152). An answer that the defendant "* is
not iniimMd and cannot state " whether or not the plaintiff was possessed,

Digitized by


370 AN8WXK. [§ 149.

<!ka is not a sufficient denial for any pnrpoee {Mon y. JArftAom, 80 Baiik W^
And so of an allegation that " the defendant aoes not ^now of his infemmtkni
or otherwise (8ayre v. Gushing, 7 Abb. 871). This form of denial (t. e., of any
knowledge or information sufficient to form a belief) is peculiarly proper in a
system which requires pleadings to be Terified under oath ; but whether the
answer is or is not veiined does not affect a question on the sufficiency of the
form of denial {Snyder v. WhiU, 6 How. 324).

a. Denial on information and belieC — It has been doubted whether a de-
fendant may make a denial on information and belief (see ffackett y, RiehairdB,
3 E. D. Smith, 13 ; Blake v. mdred, 18 How. 240).

b. The propriety or impropriety of alleging on information and belief has
been supposed to depend on the question, whether the fact alleged was or was
not within the defendant's own knowledge ; thus, per Harris, J. : ** The answer
will* be insufficient, if it denies merely upon information an all^tion the
truth or falsity of which is within the defendant's own knowledge (Edwardi
Y. Lent, 8 How. 28). In general, a defendant is permitted to allege that his
denial is on or according to his information and belief (7 Abb. 371, note). And
where an answer commenced, " The defendant verily believes, and therefore
answers and says, that the plaintiff is not, Sec. ;" it was held sufficient (Divois v.
PoOer, 4 How. 156).

e. Denial should be in Hie cUflgmiotive. — Where the complaint allied
that defendant ^^ assaulted the plaintiff, and seized him bv the collar and shook
him violently;' the answer, "'denied that he, the defendant, did assault the
^id plaintiff, and seize him by the collar and shake him violently." On de-
murrer the answer was held insufficient. " 'The defendant has grouped three
of the charges, and denied them under oath, in such a manner that if he
should be guilty of two and not guilty of the other one, his answer would not
bf Mterally untrue. The denial shoula have been of each charge disjunctively,
if tihe defendant intended to put the whole of them in issue " (Mfpkins y. JEvm^
iU, 3 Code R. 150 ; 6 How. 169). [That case was decided under the code of 1848,
which required a spedfle denial of each allegation.]

d. " The answer ma^ deny all the allegations in the complsdnt, in such
terms, that if any one is true, the denial is false, or it may deny speciffcal^
such allegations as the defendant intends to controvert on the trial But it is
not clear that anything in the code warrants the grouping of several material
allegations and denying them as an aggregate, in terms which are not inoon-
iistent with the truth of any one of them^' (Tbung v. CaUeti, 6 Duer, 44^.
And where in an action on promissory notes against the executrix of the en-
dorser, she answered " that whether or not upon the maturity of the notes
mentioned in the complaint, the same were or either of them was duly pre-
sented to the makers thereof for payment,, and pa}rment thereof demanded
and refhsed, and thereupon said notes duly protested for non-payment, and
notice of such presentment, refusal, and protest nven to the said H. L., this
defendant has no knowledge or information sufficient to form a belief" It
was said that such a denial resembled what was formerly known as " a nega-
tive pregnant" It was a denial of the conjoined facts consistent with the ex-
istence and truth of any one of the separate &ct8. (/d.) And so where the ccHn-
pUunt charges a breach of covenant in cutting and canying away wood and
timber, an answer denying that defendant cut and carried away any wood and
timber would probably be indefinite or uncertain (Beaih v. Barons, 18 Barb.
305). An answer is not firivolous merely because it denies the allqrations of
the complaint conjunctively instead of cu^unctively (LimngstonY, Bammerj 7
BoBW. 670).

e. Denial should not be in the altematlTa — ^To a complaint which alleged
that defendants purchased soods of the plaintiff, and that to obtain said goods
and deceive plaintiff, defendant represented that he was in good drcumstancea
and worth more than $3,000 over and above his debts, and that such represen-
tations were &lse, and were made to obtain possession of the goods, and to
deceive the plaintiff, the defendant answered deaymg that, to obtain said
goods and to deceive the plaintiff, he represented to the plaintiff that he was

Digitized by


§ 149.] DEHIAL. f71

m good drcmntluiees or ttiat he wm worth noro Ouui $8^080 o^er aad aboye
hiB debts, or that the representations were fidse, or were made to obtakt said
goods. On motion to strike out parts of the answer, Sbankiand, J., said k
was defectiye as denying " the allegations of the complaint in the alternative
form — that he made his representation, or that, or that, or that, — and thns
reaves it uncertain what he means to deny*' (Oti» y. Bamy 8 How. 198; Cfiff^m
7. Otorge, 3 Abb. 467. See note to section 165, patC^.

a. Denlalofpart of a oame of action; or of one of several causes of ao-
tloD. — Where the cause of action stated in the complaint is deyisible, or wb^e
there are seyeral causes of action stated, the defendant may by his answer ^
ny part, or some, or one of the cause or causes of action and leave the residue
unanswered {SmUh v. Skufddt, 3 Code Rep. 175 ; Traey v. Bumjihrey, ib. 190 ;
Wm»Y. Taggard, 6 How. 433 ; Qenesee Mut. Ins. Co, v. Majfnihen, 5 «J. 822 ; /8^
'Ur y. White^ 6 ib. 821) ; or answer the residue by new matter or otherwise
'Longworthg y. Knapp^ 4 Abb. 115).

h. What may be denied.— A-denial that the plaintiff is entitled to the sum
of money demanded, is not a denial of a material allegation (Drake y. CMb-
crofl^ 1 Abb. 208 ; 10 How. 877 ; 4 E. D. Smith, 39). In an acUon by two er
more for an unlawiul taking of property, the defendant Answers that the
plaintiffs are not joint owners of the property. Tiic averment that plaintlA
are not^oint owners is material (Wairod v. Eiennett^ 6 Barb. 144). In an action
for detaining personal property, the value of the property is not the subject of
in issueand should not be demed (Cannoes v. Metr, 2 R D. Smith, 814 ; Mo-
Kemie v. FarreU 4 Bosw. 198 ; HaekeU v. Richards, 3 %b 18; Woodruff v. Cook.
25 Barb. 505). Although the value is alleged in the complaint and not denied
by the answer, the defendant may, on the trial, prove the true value (lb).
See, however Areher v. Bottdinet (l Code Rep. N. 8. 378), where it is said the
complaint haying fixed the value of tlie property, and the answer not denjring
it; no other value Qould be adopted even by the jury. And where a com-
plaint gives credit for a payment on account, that is not a traversable fact
{Bodgins y. Hancock, 14 Mees. & W. 120). In Oregcry v. Wright (11 Abb. 417).
an action for goods sold and for services held that an answer which denied
the value of the services raised a material issue. In McKemie v. Farrdl (4
Bosw. 193) it was decided that allegations of value need not be denied.

e. In an acticm for a breach of covenant, an averment in the complaint of
the amount of damages, is not the proper subject of denial It is not issuable
matter and the defendant does not admit the amount alleged, by neglecting to
deny it (HaekeU v. Richards^ 8 E. D. Smith, 13). Even on a default the amount
of (kunage must be proved or the plaintifif take judgment for a merely nominal
sum. (Ih, ; and see Gilbert v. Bounds, 14 How. 49).

d. An answer that defendant is not bidebted in manner and form as alleged,
as it is but a denial of a conclusion of law, is not sufficient in any action
(Pierwn y. Cooley, 1 Code Rep. 91), except that where the plaintiff states as his
cause of action that the defendant is indebted to the plaintiff, instead of set-
ting forth Uie contract on which the cause of action arises, the defendant may
take issue on indebtedness (Morrow v. Cougan, 3 Abb. 328). This accorda,
with a decision of (Anon., 2 Code Rep. 67), that when indebtedness is stated
in a complaint as a matter of fact, an answer of not indebted, is sufficient. An
allegation in an answer that the defendant never gave the plaintiff the* note
mentioned in the complaint, amounts to a denial of the making the note and
plaintiTs ownership (Satoyer v. Warner, 15 Barb. 282); circumstances of
aggravation are not traversable ( OUbert v. Bounds, 14 How. 49) ; nor are alle^
tions of special damage (Moloney v. Dows, 15 How. 265) ; unless the s^ial
damage is the gbt of the action, in •yhich case it Js traversable (PBrring v.
Harm, 2 M. & Rob. 5).

• «. A &ct impliedly averred may be traversed in the same manner as If it
were expressly averred (Haight v. HdOey, 3 Wend. 268 ; 11 East 406 ; Prindk
V. Caruthers, 15 N. Y. 429; Bellinger v. Oraigue, 31 Barb. 584; Lord v. G*ii-
i(frmtgk,4&find.(m; 1 Code R N. S. 822) ; and if not denied H is admitted
(Afuible V. Sl':i:i, Kun^'vr C<h, Jft Abb. 28^.

Digitized by


272 AHSWER. § 14f^.

a. Where a complaint diai^ges a trespasB on a partiicolar day, if the answer

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