a. Objections by answer are to be taken when they do not appear upon the face of the complaint. Sullivan v. Frazee, 4 Rob. 616. b. Want of jurisdiction.-An objection that the court has no jurisdiction of the person of the defendant (when that fact does not appear on the complaint) should be so taken. id. Such an answer is not a voluntary and general appearance, which waives the objection. Ib. c. Void contract.-Where a complaint alleges a cause of action on contract, and avers that the contract was made in a foreign State, the objection that it is void by the law of such State, must be raised by an answer, stating the law of the foreign State. Humphrey v. Chamberlain, 1 Code R. N. S. 387. But where the cause of action arises out of a transaction void by the laws of this State, if in fact the transaction took place in another State, by the laws of which it was valid, then that must appear from the complaint. Thatcher v. Morris, 11 N. Y. (1 Kern.), 437. d. Defect of parties.-Where a married woman sues alone, when her husband should have joined as plaintiff, and the fact of her coverture does not appear on the face of the complaint, the only way in which to raise the defense of plaintiff's coverture, is by answer. Dillaye v. Parks, 31 Barb. 132. For where there is a defect of parties plaintiff, which does not appear upon the face of the complaint, it is waived, unless insisted on by answer. Scrantom v. Farmers' and Mechanics' Bank of Rochester, 33 Barb. 527; S. C. Aff'd, 24 N. Y. (10 Smith), 424. Where a complaint sets up a joint cause of action against the defendant and another, or others who are not joined as defendants, and is silent as to whether the others are living or dead, the objection should be raised by an answer setting up that such others are living. Brainard v. Jones, 11 How. 569; Scofield v. Van Syckle, 23 id. 97. But see 33 id. 80. e. Another action pending.-When there are two actions pending between the same parties, for the same cause, but that does not appear on the face of the complaint, the objection must be raised by an answer of another action pending. Hornfager v. Hornfager, 1 Code R. N. S. 412; S. C. 6 How. 279. Soe 7 Rob. 198. f. Corporations.—In an action by a corporation, where the want of legal capacity to sue does not appear on the face of the complaint, the objection must be raised by answer. Phonix Bank of New York v. Donnell, 40 N. Y. (1 Hand), 410; Aff'g S. C. 41 Barb. 571; Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. (10 Tiff.), 648; Union Mutual Ins. Co. v. Osgood, 1 Duer, 707; S. C. 12 N. Y. Leg. Obs. 85. But see Bank of Havana v. Wickham, 7 Abb. 134; S. C. 16 How. 97; S. C. Aff'd, sub nom. Bank of Havana v. McGee, 20 N. Y. (6 Smith), 355. § 148. [127.] (Am'd 1849.) Objection; when deemed waived. If no such objection be taken, either by demurrer or answer, the defendant shall be deemed to have waived the same, excepting only the objection to the jurisdiction of the court, and the objection that the complaint does not state facts sufficient to constitute a cause of action. a. How objection to be taken.Where the objection appears on the face of the complaint, it must be taken by demurrer, where it does not, by answer; otherwise it is waived. Tremper v. Conklin, 44 Barb. 456; Loeschigk v. Addison, 19 Abb. 169; S. C. 3 Rob. 331; Palmer v. Davis, 28 N. Y. (1 Tiff.), 242; Hosley v. Black, id. 438; S. Č. 26 How. 97; Merritt v. Walsh, 32 N. Y. (5 Tiff.), 685; Donnell v. Walsh, 33 N. Y. (6 Tiff.), 43; Aff'g S. C. 6 Bosw. 621; Lee v. Wilkes, 27 How. 336; S. C. 19 Abb. 355; Blossom v. Barrett, 37 N. Y. (10 Tiff.), 434; S. C. 5 Trans. App. 36; Zabriskie v. Smith, 13 N. Y. (3 Kern.), 336. See Scrantom v. Farmers' and Mechanics' Bank of Rochester, 33 Barb. 527; S. C. Aff'd, 24 N. Y. (10 Smith), 424. b. Waiver.-An objection proper to be taken by demurrer, is waived, if taken by answer. Patchin v. Peck, 38 N. Y. (11 Ťiff.), 39; S. C. 5 Trans. App. 33; Mayhew v. Robinson, 10 How. 162; Ingraham v. Baldwin, 12 Barb. 9; S. C. Aff'd, 9 N. Y. (5 Seld.), 45; | | Baggott v. Boulger, 2 Duer, 160; Rank of Waterville v. Beltser, 13 How. 270; Gassett v. Crocker, 10 Abb. 133; Dennison v. Dennison, 9 How. 246. c. Defect of parties.-"That there is a defect of parties plaintiff or defendant," means that there are too few, not too many parties. Palmer v. Davis, 28 N. Y. (1 Tiff.), 242. The objection of defect of parties must be taken by demurrer or by answer, otherwise it is waived. id.; De Puy v. Strong, 37 N. Y. (10 Tiff.),372; S. C. (3 Keyes), 603; 4 Abb. N. S. 340; Fosgate v. Herkimer Manufacturing and Hydraulic Co. 12 N. Y. (2 Kern.), 580; Penman v. Slocum, 41 N. Y. (2 Hand), 53; Zabriskie v. Smith, 13 N. Y. (3 Kern.), 322; Fisher v. Hall, 41 N. Y. (2 Hand), 416; Wright v. Storrs, 6 Bosw. 600; S. C. Aff'd, 32 N. Y. (5 Tiff.), 691; Dillayev. Parks, 31 Barb. 132; Lewis v. Graham, 4 Abb. 106; Wright v. Bennett, 3 Barb. 451; Abbe v. Clarke, 31 id. 238; Benson v. Paine, 2 Hilt. 552; S C. 9 Abb. 28; 17 How. 407; Hosley v. Black, 26 id. 97; S. C. 28 N. Y. (1 Tiff.), § 148.] DEMURRER TO SPECIFY GROUNDS, OF. 438; Giraud v. Beach, 3 E. D. Smith, 337; Where a creditor suing for himself, should also sue on behalf of others, it is not a mere objection for defect of parties, and may be raised for the first time on the trial. Greene v. Breck, 10 Abb. 43: S. C. Rev'd, 32 Barb. 73. d. Waiver of other objections.-In the same manner, a misjoinder of several causes of action may be raised. Blossom v. Barrett, 37 N. Y. (10 Tiff.), 434; S. C. 5 Trans. App. 36; Youngs v. Seely, 12 How. 395; Winterson v. Eighth Avenue R. R. Co. 2 Hilt. 389; Wright v. Storrs, 6 Bosw. 600; S. C. Aff'd, 32 N. Y. (5 Tiff.), 691; 29 How. 573 (n.); Donnell v. Walsh, 6 Bosw. 621; S. C. Aff'd, 33 N. Y. (6 Tiff.), 43; 29 How. 573. Or, a defense of coverture. Castree v. Gavelle, 4 E. D. Smith, 425. Or, that that the suit was commenced before the cause of action accrued. Smith v. Holmes, 19 N. Y. (5 Smith), 271. Or, that the suit is not in the name of the real party in interest. Savage v. Corn Exchange Fire and Inland Navigation Ins. Co. 4 Bosw. 2. Or, that the plaintiff has not legal capacity to sue. Mosselman v. Caen, 34 Barb. 66; S. C. 21 How. 248. Or, in any defense which should be specially pleaded, (n. to § 149.) It seems a defendant waives the objection of non-joinder of parties defendant by setting up a counterclaim in favor of himself, jointly with such other parties, and against the plaintiff. Secor v. Law, 9 Bosw. 163, (185); S. C. Aff'd, 3 Keyes, 525, sub nom. Secor v. Lord, 33 How. 618. e. Tenants in common.—If one of two Gock v. | f. Demurrer for one cause.-Where a does not state facts sufficient to constitute a demurrer states for grounds that the complaint cause of action, and is interposed without an the form of action, such latter objections are objection for the want of proper parties, or to waived, and for all purposes of the demurrer, the complaint must be deemed unobjectionable by reason of any such defect. Loomis v. Tifft, 16 Barb. 541. murrer or answer. g. Action by husband and wife.- h. Want of jurisdiction.-An objection i. No cause of action.-The objection cient to constitute a cause of action, is availthat the complaint does not state facts suffiable at any stage of the action; omitting to demur, does not waive it. Coffin v. Reynolds, 37 N. Y. (10 Tiff.), 640; S. C. 5 Trans. App. 74; Higgins v. Freeman, 2 Duer, 650; Montgomery County Bank v. Albany City Bank, Barb. 396; Gould v. Glass, 19 Barb. 179, 7 N. Y. (3 Seld.), 459; modifying S. C. 8 Chandler, 11 Abb. 459. Where such objection is taken on the trial, (186); De Witt v. and the defect is supplied by evidence, it will not be available on an appeal. Morton v. Pickering, 8 Bosw. 135. j. In an action under a statute, if the pleading does not conform to the requirements of the statute, the objection is not waived by answering. Stannard v. Eytinge, 5 Rob. 90. k. Radical defects.-An incurable defeot in the complaint is never waived, but may be raised whenever the parties are before the court, at special term, by motion, or on the trial, by motion in arrest after verdict. Burnham v. De Bevorse, 8 How. 160; Budd v. Bingham, 18 Barb. 494. Thus, the exemption of foreign counsel from the jurisdiction of a State court, is not waived by an answer to the merits. Valarino v. Thompson, 7 N. Y. (3 Seld.), 576; Flynn v. Stoughton, 5 Barb. 115. His being sued together with a citizen, on a the State courts. id. Rock River Bank v. joint contract, does not give jurisdiction to Hoffman, 22 How. 250; S. C. Rev'd, id. 510; 14 Abb. 72. Perhaps the same rule applies in actions for torts. Hernandez v. Carnobeli, 4 may be sued in the district courts of the Duer, 642; S. C. 10 How. 433, (448.) He United States, and if an alien, he may be sued as such by a citizen, in the United States cirBarclay, cuit court. St. Luke's Hospital v. British counsel, United States circuit court, southern district of New York, October, 1855. Appointing a person foreign counsel, does not | oust a State court of its jurisdiction in a suit previously commenced against him. Koppel v. Heinrichs, 1 Barb. 449. If, however, on the trial the proof supplies the defect in the complaint, the objection may be overruled. Lounsbury v. Purdy, 18 N. Y. (4 Smith), 521; Emery v. Pease, 20 N. Y. (6 Smith), 64. 1. When an objection cannot be raised. Where, upon a demurrer to the answer, the defendant claims that the complaint is defective, he is deemed to have waived all objections to the complaint not raised by answer or demurrer, except the want of jurisdiction, or of a cause of action. People v. Banker, 8 How. 258; Winterson v. Eighth Avenue Railroad Co. 2 Hilt. 389. m. On appeal.-An objection to the sufficiency of the complaint, if not presented by demurrer, must be raised at the special term or circuit, before it is available on appeal. Pope v. Dinsmore, 8 Abb. 429; S. C. 29 Barb. 367; Carley v. Wilkins, 6 id. 558; contra, Cole v. Blunt, 2 Bosw. 116, (125.) 150. May set forth as many grounds of defense as exist. 151. Demurrer as to some causes of action, and answer as to others. § 149. [128.] (Am'd, 1849, 1851, 1852.) Answer; what to contain. 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition. I. WHAT CONSTITUTES AN ANSWER. a. No defense.-Where, in an action against a telegraph company, it appeared from the complaint, that defendant never transmitted plaintiff's message, and from the answer, that by the contract defendant was not responsible for delay, error or remissness in the delivery of the same, held, that the answer set up no defense, but admitted the substance of the complaint, viz.: an entire omission to send or deliver the message. Baldwin v. United States Telegraph Co. 54 Barb. 505; S. C. 6 Abb. N. S. 405; S. C. again, 1 Lans. 125. So, where it appeared from the answer that defendant received the message from a connecting telegraph line under a different or special agreement, but it did not appear that such agreement was made with, or known of, by the plaintiff. id. So, also, where the answer alleged that the injury which the plaintiff complained of resulted from his own negligence, but did not state facts on which the court could adjudge such negligence as matter of law. Id. b. Denial, or new matter.-An indorsement on the back of a complaint, "All of the within is not as stated," and signed by the defendant, may in some cases constitute a valid answer. Didier v. Warner, 1 Code R. 42. The answer must contain either a general or specific denial of the complaint, or a statement of new matter constituting a defense. | Mattison v. Smith, 1 Rob. 706; S. C. 19 Abb. 288; McKyring v. Bull, 16 N. Y. (2 Smith), 297, 307. Where the complaint was for goods sold and delivered, and the answer alleged, secondly, that plaintiff never sold defendant any goods which had not been paid for by him; and thirdly, if the plaintiff ever sold any goods to defendant, they were sold on credit, and not to be paid for in nine years from the day of sale; held bad, and struck out as not amounting either to a denial or statement of new matter. Hamilton v. Hough, 13 How. 14. c. Answer to part.-An answer is sufficient if it constitute a defense or counterclaim to so much of the complaint as it professes to answer. McKyring v. Bull, 16 N. Y. (2 Smith), 297, 307; Allen v. Haskins, 5 Duer, 332; Kneedler v. Sternberg, 10 How. 68. But if it assumes to answer the whole cause of action, and in fact only answers part, it may be demurred to. Foster v. Hazen, 12 Barb. 547; Beach v. Barons, 13 id. 306; Thumb v. Walrath, 6 How. 196; S. C. 1 Code R. N. S. 316; Willis v. Taggard, 6 How. 433; Nichols v. Dusenbury, 2 N. Y. (2 Comst.), 283; Howk v. Pollard, 6 Blackf. 108; Hickley v. Grosjean, id. 351. If to answer only a part, without specifying what part, it is sufficient if it denies a material allegation in the complaint. Cottingham v. State, 7 Blackf. 405. If to answer only a specified part, it is confined to that part, though in reality it constitutes a legal defense to the whole action. Cross v. Watson, 6 Blackf. 129. d. It should specify what part.The answer should so distinctly specify that portion of the complaint to which it applies, that the court can at once see what it covers. Davison v. Schermerhorn, 1 Barb. 480. Where the answer assumed to be to the whole of a complaint for assault and false imprisonment, but only justified the latter, it was held bad on demurrer. Foster v. Hazen, 12 Barb. 547. A party cannot answer to a bill of particulars. Kreiss v. Seligman, 8 Barb. 439; S. C. 5 How. 425, sub nom. Kneiss v. Seligman; Scovell v. Howell, 2 Code R. 33. e. The issues.-A defendant has a right to consider that the complaint served on him is the only one he is required to answer, and that the cause is to be tried on the issues raised by his answer thereto. Trowbridge v. Didier, 4 Duer, 448; Hughes v. Wood, 5 id. 603 (n.); Graham v. McCoun, 5 How. 353; S. C. 1 Code R. N. S. 43; Littlejohn v. Munn, 3 Paige, 280. ƒ. Justification.—In actions against sev II. DENIALS, a. A general denial is a denial of all the allegations of the complaint taken together. A specific denial is a denial of one or of each allegation taken separately. Mattison v. Smith, 1 Rob. 706; S. C. 19 Abb. 288; Dennison v. Dennison, 9 How. 246; Seward v. Miller, 6 id. 312. That "the defendant denies each and every allegation of the complaint," is sufficient as a general denial. Kellogg v.Church, 4 How. 339; S. C. 3 Code R. 39; Radde v. Ruckgaber, 3 Duer, 684. b. General denial of part.-It seems that an answer which contains a general denial of each and every allegation of the complaint, except certain parts therein admitted, is good. Parshall v. Tillou, 13 How. 7; Genesee Mutual Insurance Co. v. Moynihen, 5 id. 321; Smith v. Wells, 20 id. 158; Wooden v. Waffle, 6 id. 145; S. C. 1 Code R. N. S. 392. The word "controverted," in connection with the word "denial," whether the denial be general or specific, requires that the answer should so describe the allegations of the complaint controverted, that any person of intelligence can identify them. Mattison v. Smith, 19 Abb. 288; S. C. 1 Rob. 706; e. g., an answer which denies all the allegations which are contained between specified folios, is good as a general denial. id. Gas sett v. Crocker, 9 Abb. 39. An answer may contain a general denial of part of a complaint, and a specific one of the remainder. Blake v. Eldred, 18 How. 240. c. Frivolous denial.-An answer is not rendered frivolous by the use of the words, the defendant "says that he denies," instead of simply the defendant "denies." Chapman v. Chapman, 34 How. 281; contra, Ar eral defendants, it is often better that each defendant answer separately; e. g., where justification is relied on as a defense. 2 Saund. Pl. & Ev. 18, 19. g. Dilatory defenses must be pleaded by all, and be common to all the defendants. Hurley v. Second Building Association, 15 Abb. 206 (n.) h. Action against executors.-In an action against several executors, such of them as first appear, or are first served with process, may answer, and thereby preclude their coexecutors from answering. Salters v. Pruyn, 15 Abb. 224. But the plaintiff waives the irregularity of a second answer by such coexecutors, by not returning it, or by not moving to strike it out. id. Where there is collusion between the plaintiff and the executor first answering, the others should obtain leave of the court for a separate answer. Ib. i. Denials.-An answer containing a general and specific denial of the same matter, is bad for redundancy, and defendant will be compelled, on motion, to elect which he will retain. Dennison v. Dennison, 9 How. 246; Blake v. Eldred, 18 id. 240. How MADE. thur v. Brooks, 14 Barb. 533; Blake v. Eldred, 18 How. 240. d. Special denial.-Where, in an action for goods sold and delivered, the complaint alleged the sale and the indebtedness of the defendant therefor, and the answer admitted the sale, but alleged that it was on a credit of six months, and that the credit had not expired, held to be a special denial. Gilbert v. Cram, 12 How. 455. e. Insufficient denial. An answer, which, instead of denying the allegations of the complaint, contains a version of the transaction, which is partially inconsistent with such allegations, and merely implies that such allegations are controverted or justifies an inference that such is its effect, is not a denial. West v. American Exchange Bank, 44 Barb. 176; Wood v. Whiting, 21 id. 190. See Hamilton v. Hough, 13 How. 14; Isles v. Tucker, 5 Duer, 393; Loosey v. Orser, 4 Bosw. 392; Gilbert v. Cram, 12 How. 455. Where an answer alleged that the contract set up in the complaint was "incorrectly stated," and also contained a specific denial of several parts of the same, without any further general denial, held, that the agreement, except those parts specifically denied, was admitted. Levy v. Bend, 1 E. D. Smith, 169. It is not a denial to answer that he "does not know of his information, or otherwise, that the plaintiff has commenced the action in the complaint mentioned." Sayre v. Cushing, 7 Abb. 371. f. Denial of any knowledge, etc.An answer which alleges that defendant has no knowledge or information sufficient to form a belief, whether the allegations of a complaint are true, forms a complete issue. Livingston v. Hammer, 7 Bosw. 670; Ketcham v. Zerega, 1 E. D. Smith, 554. g. when not sufficient.-Such a denial may be stricken out on motion, as sham, where the facts alleged in the complaint, if true, must necessarily be known to defendant, or where he must be deemed, as matter of law, to have notice thereof, unless he give some explanation showing his good faith in the matter. Edwards v. Lent, 8 How. 28; Ketcham v. Zerega, 1 E. D. Smith, 554; Kellogg v. Baker, 15 Abb. 287. Or has the means of information. Hance v. Remming, 1 Code R. N. S. 204; S. C. 2 E. D. Smith, 48, sub nom. Hance v. Rumming. Or the fact is one that must be presumed within his knowledge. Fales v. Hicks, 12 How. 153. So, where the answer is verified. Shearman v. New York Central Mills, 1 Abb. 187; Aff'g S. C. 11 How. 269; Chapman v. Palmer, 12 id. 38; Fales v. Hicks, id. 153. Such a denial was stricken out in an action to recover on a judgment where the defendant had appeared in the action in which the judgment sued on was recovered. Beebe v. Marvin, 17 Abb. 194. So, in an action for an assault, where this form of denial was applied to the assault. Richardson v. Wilton, 4 Sandf. 708. So, where defendant admits the execution of an instrument, but adopts this form of denial as to its contents. Wesson v. Judd, 1 Abb. 254. He is entitled to an inspection of the original to enable him to answer, id., and is not presumed to recollect the date or contents of a written instrument, not in his possession or control, and, as to date, may deny knowledge. Kellogg v. Baker, 15 Abb. 287. Such a denial of the making of a promissory note, in an action against the partnership makers, was stricken out. Mott v. Burnett, 1 Code R. N. S. 225; S. C. Rev'd, 2 E. D. Smith, 50. In an action on a bond conditioned to be void, if the plaintiff recovered judgment against C., and executed as surety by defendant, such a denial of the recovery was stricken out. Hance v. Remming, 1 Code R. N. S. 204; S. C. 2 E. D. Smith, 48, sub nom. Hance v. Rumming. Where the action was against a partner for goods sold and delivered, such a denial of the sale and delivery by one partner, although verified, was stricken out. Chapman v. Palmer, 12 How. 38. So, in an action founded on a former judgment, recovered against defendant, such a denial of the judgment was stricken out. Ketcham v. Zerega, 1 E. D. Smith, 553. In an action for false imprisonment on process, such a denial, that defendants caused the process to issue, was stricken out. Lawrence v. Derby, 15 Abb. 346 (n.); S. C. 24 How. 133. So, also, such a denial of the indorsement and transfer of a note by defendant was stricken out. Fales v. Hicks, 12 id. 153. h. When such an answer sufficient. A defendant, sued as maker, with an indorser of a promissory note, may, in this manner, deny that the other defendant transferred the note to plaintiff, or that, when payable, it was duly presented therefor. Flood v. Reynolds, 13 How. 112; Sherman v. Bushnell, 7 id. 171; Thorn v. New York Central Mills, 10 id. 3 Bosw. 103. Where, in an action by an ad20; Duncan v. Lawrence, 6 Abb. 304; S. C ministrator, the complaint alleged the death of the intestate, the granting of letters to plaintiff and the defendant's indebtedness for coal sold by intestate to defendant, an answer alleging want of knowledge or information, etc., held not frivolous. Morrow v. Cougan, 3 Abb. 328. And, although defendant may have knowledge enough to say whether or not ho purchased the coal, still he may be ignorant of the death of the intestate, or as to the granting of letters to the plaintiff. Ib. i. Party brought in.-An answer of a defendant, brought in by a supplemental complaint, alleging that he is ignorant of the facts admitted by the answer of the original defendant, to whose interest he has succeeded, does not put in issue such facts. Forbes v. Waller, 25 N. Y. (11 Smith), 430; S. C. 25 How. 166; Aff'g S. C. 4 Bosw. 475, sub nom. Forbes v. Logan. j. Action on note.-In an action against their order, an answer alleging that defendthe makers of a promissory note payable to ants never indorsed, or delivered, or in any also, that defendants have no knowledge or way transferred the note to plaintiffs, and information, etc., whether or not the plaintiffs are the lawful owners or holders of said note, held frivolous. Kamlah v. Salter, 6 Abb. 226; S. C. 1 Hilt. 558; contra, 6 Abb. 226, (n.); Temple v. Murray, 6 How. 329; Snyder v. White, id. 321; Genesee Mutual Ins. Co. v. Moynihen, 5 id. 321. See also, note section 247, post. edge, etc.-An answer alleging that defendk. Form of denying any knowlant has not "any knowledge or information sufficient to form a belief," makes a complete denial. Flood v. Reynolds, 13 How. 112; Platt, id. 325; Livingston v. Hammer, 7 Leach v. Boynton, 3 Abb. 1, 3; Townsend v. Bosw. 670. It seems, that a denial of any charged, although nothing is said as to knowledge or information as to the facts "belief," is sufficient. King v. Ray, 11 Paige, 236. Where an answer contains an allegation of want of any knowledge or information, followed by a further allegation "and therewhich is for any cause insufficient, and is fore he denies," etc., the latter will be disregarded. Chapman v. Palmer, 12 How. 38; Edwards v. Lent, 8 id. 28. A denial "for belief," instead of "any knowledge or inthe want of knowledge sufficient to form a formation," etc., is not sufficient. Heye v. Bolles, 33 How. 267; S. C. 2 Daly, 231; Edwards v. Lent, 8 How. 28; Ketcham v. Zerega, 1 E. D. Smith, 554. It seems, that where the complaint contains absolute and unequivocal allegations, supported by an oath of positive knowledge, and the answer being only on "information sufficient," etc., the |