consequence of a violation by him of the laws of this state. It admitted that defendant issued the two policies, copies of which were annexed to the complaint, and begged leave to refer to the originals when they should be produced; it admitted the other allegations of the complaint:

Held, that the answer admitted all the material facts required to be established by plaintiff to maintain the action; that defendant had the affirmative of the issue and the right to open and close the case, and a denial of this right was error; that the allegation in the complaint that no condition was broken was not essential to the cause of action; plaintiff was not required to prove it, and the insertion and denial thereof did not deprive defendant of his right to the affirmative; also that the request in the answer to refer to the original policies was not a denial and did not require proof of them. (Id.)

7. Where, after the commencement of an action, a third party becomes interested in the litigation by assuming the liabilities of the defendant in respect to the claim plaintiff is seeking to enforce, it is proper to allow a supplemental complaint bringing in such third party as a co-defendant. (Prouty agt. L. S. & M. S. R. R. Co., 85 N. Y., 272.)

8. Where, therefore, after the commencement of an action against a railroad company upon a contract, it appeared that it and other companies were merged in a new company, the latter having assumed all of the contracts, liabilities and obligations of the original companies:

Held, that an order allowing defendant to file a supplemental complaint bringing in the new company as defendant was properly granted. (Ia.)

9. It is not essential that a plaintiff

shall set up in his complaint, or by way of reply, facts in rebuttal or avoidance of an affirmative defense, not a counter-claim, set up in the answer. All that is requisite is that the complaint states facts sufficient to make out a cause of action; and if the answer sets up facts which if true would destroy that cause of action, plaintiff may meet them by proof in rebuttal or avoidance. (Met. L. Ins. Co. agt. Meeker, 85 N. Y., 614.)

10. Where there is a semblance of a cause of action or defense set up in a pleading, its sufficiency cannot be determined on motion to strike it out as redundant or irrelevant. (Walter agt. Fowler, 85 N. Y., 621.)

11. It seems, that the proper way to test the validity of the pleading is by demurrer, or by motion on trial. (Id.)

12. On demurrer, all reasonable intendments will be indulged in in support of the pleading demurred to. (Lorillard agt. Clyde, 86 N. Y., 384,)

13.

The remedy for indefiniteness and uncertainty in a pleading is by motion, not by demurrer. (Id.)

14. To avail himself of the exception in the bankrupt act when a debt was "created by the fraud of the bankrupt" the creditor is not bound to base his action upon or to set up the fraud in his complaint. He may sue upon the debt or upon notes given therefor, and if the composition and discharge is set upon as a defense, he may meet it by proof of the fraud; and this without serving a reply. unless a reply has been directed by the court, as provided by the Code of Civil Procedure (Sec. 516.) (Argall agt. Jacobs, 87 N. Y., 110.)

15. When the gravamen of an action as set forth in the complaint

is fraud, and the action is tried upon that theory without objection or exception, and the judgment is adverse to the plaintiff, the question as to whether the complaint stated facts sufficient to constitute a cause of action on contract, and whether there was evidence sufficient on the trial to sustain such a cause of action cannot be considered on appeal to this court. (Sailsbury agt. Howe, 87 N. Y., 128.)

16. Plaintiffs' complaint alleged in substance that defendant was employed as their agent, for a commission agreed upon, to purchase for them what were known as "city horns;" that he acted in that capacity for a series of years, receiving moneys from plaintiffs and rendering accounts at stated intervals which he represented to be correct, and which were settled in reliance upon such statements; that such accounts were, in fact, false and fictitious, and by means thereof defendant, "intending to cheat and defraud plaintiffs, obtained from them and fraudulently converted to his own use upwards of $11,000.' The relief prayed for was that defendant render an account and pay over the amount found due:

Held, that the action was one "to procure a judgment other than for a sum of money" within the meaning of the provision of the Code of Civil Procedure (sec. 382, sub. 5), limiting the time for the commencement of "an action to procure a judgment other than for a sum of money on the ground of fraud,' but that it was not "to procure a judgment on the ground of fraud;" that the gracamen of the action was a breach of contract, i. e., a failure of the agent to properly perform his duty of accounting justly and honestly to his principal; that the fraud was not material to the cause of action, but only as a necessary fact to open the closed accounts and to

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prevent them from being a conclusive defense; and that, therefore, the case did not come within the clause of said provision declaring that in the cases specified the cause of action should not be 'deemed to have accrued until the discovery # of the facts constituting the fraud," but that the statute began to from the time of the incurring of the obligation; i. e., from the time of the misappropriation by defendant of the money of his principals, or the obtaining from them of money to which he was not entitled. (Carr agt. Thomp son, 87 N. Y., 160.)

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17. In an action for libel, the libelous matter was alleged in the complaint to have been contained principally in a letter written and published with the advice and assistance of defendant. The particular portions of the letter complained of were set forth specifically. Defendant, in his answer, admitted the publication; that it was with his advice and assistance and that it contained the words set forth in the complaint, but alleged that they were not true and correct extracts, but were garbled and incomplete; also that the letter, as to the matters stated in the complaint, was true. A copy of the letter, which was very voluminous and contained much irrelvant matter, was annexed to and made part of the answer. The letter was on plaintiff's motion, stricken out:

Held, no error; that, under the answer, the defendant could, on the trial, show the context, or at least so much thereof as might tend to explain the sense in which the alleged libelous words were used; but this was a rule of evidence, not of pleading, and it was not necessary for that purpose that the letter should be made part of the answer. (Kelly agt. Waterbury, 87 N. Y., 179.)

18. The answer set up a justifica

tion which was prefaced by a

statement to the effect that the defendant, in order to show that the several statements contained in the alleged libels are true, "states and alleges as follows: " This introductory statement was also stricken out on motion:

Held, no error; that it was not necessary to characterize the defense, as whether it contained a justification was to be determined by its averments, and it could not be aided, enlarged or improved by such a clause characterizing it or expressing its purpose. (Id.)

19. Plaintiff's complaint alleged, in substance, that he and defendant W. were copartners and the firm was insolvent; that the other defendants, acting in collusion with W. and for the purpose of harassing plaintiff and obtaining an undue advantage over other creditors, had commenced actions against the firm in the marine court of the city of New York, and had procured attachments therein on the ground that the members of said firm were nonresidents of the county of New York; that the action of defendant L. was upon contract, the amount claimed being $1,783.89; that the attachment had been levied upon firm property; that the partners resided, at the time the attachments were issued, in the county of Kings, and had their office and place of business in the city of New York; therefore the said court had no jurisdiction to issue the attachments, and the same were void. The relief asked was a dissolution of the firm, an accounting, &c., and that defendants, the attaching creditors, be restrained from prosecuting their actions in the marine court. Defendant L. demurred:

Held, that the demurrer was properly sustained, that no cause of action, as against him, was set forth in the complaint. (Fielding agt. Lucas, 87 N. Y., 197.)

20. In an action upon a promissory note, the answer admitted the making of a note for the amount, and payable at the time of the note set forth in the complaint, but averred that said note, after its delivery to plaintiff, was materially altered by him without defendant's knowledge or consent, by changing the date thereof from April 1, 1872, to April. 1, 1873. This answer was struck out, cn motion, as sham and frivolous:

Held, error; that the alteration alleged was material; also, that it was not the province of the court to decide the question of fact raised by the answer, upon mere inspection of the note. (Rogers agt. Vosburgh, 87 N. Y., 228.)

21. An innuendo in a complaint in an action for libel does not enlarge the matter set forth in the alleged libelous words, but only explains their application; and when not justified by the statements to which it refers, so that rejecting it the words are not libelous, a demurrer to the complaint will lie (Fleischman agt. Bennett, 87 N. Y., 251.)

22. The provisions of the Code of

Civil Procedure (sec. 535) dispensing with the necessity, in an action for libel, of stating intrinsic facts showing the application of the defamatory matter to the plaintiff, and making a general averment that it was published of and concerning him sufficient, does not aid the plaintiff where the general averment is contradicted and rendered nugatory by other allegations; as where the complaint denies plaintiff's connection with the facts stated in the alleged libelous matter, and he is not therein charged in any manner, either directly or indirectly, with being so connected. (Id.)

23. In an action for libel, one count of the complaint, after stating that plaintiff was and had been

in business at a place named, alleged that defendant published of and concerning him the libel thereinafter set forth; that he was not in any manner a copartner, owner or agent in any business such as is described in the alleged libelous article, a copy of which was then given. This article had reference solely to a business which it was stated therein was carried on by the firm of G. F. & Co., and was directed against that firm and its business. Innuendoes were inserted in the complaint, alleging that the article had reference to and meant defendant:

Held, that a demurrer to said count was properly sustained; that it could not be claimed that any other persons besides the members of the firm were referred to or intended to be included in the libelous charges, and as the article neither described nor referred to the plaintiff or his business, but named a different business, a firm, of which plaintiff alleged he was not and never had been a member, he could not be in any way connected with the libel complained of; also, that the averments that the publication was of and concerning the plaintiff did not obviate the difficulty. (Id.)

24. The complaint set forth six different alleged libelous articles published by defendant at different times, each of which was separately numbered:

Held, that the complaint could not be considered as embracing but one cause of action, or that one of the defamatory articles was set out as matter of inducement to the others; but that it set forth separate and distinct causes of action. (Id.):

25. In an action against an attorney to recover money collected by him, defendants' answer did not set up a technical counter-claim, but alleged the performance of services, their value and the right

of defendants to retain therefor the whole sum collected:

Held, sufficient to authorize proof of the alleged lien. (Ward agt. Craig, 87 N. Y., 550.)

26. In an action by a judgment creditor to set aside, on the ground of fraud, a conveyance of real estate by the debtor, the complaint must allege the issuing of an execution upon the judgment. The return of an execution unsatisfied is essential to give the court jurisdiction, or the action must be brought in aid of an execution then outstanding. (Adsit agt. Butler, 87 N. Y., 585.)

27. Ailegations that the debtor is dead, and from the time of the rendition of the judgment unti! his death was wholly insolvent, are not sufficient. (Id.)

28. Where, in an action for a breach of covenant in seizin in a deed, the complaint averred as a breach that defendant was not the true owner, nor was he seized, &c., negativing the words of the covenant; and the answer admitted the conveyance, but denied all the other allegations of the complaint:

Held, that the affirmative of the issue under the Code was upon the plaintiff; and that he must prove the breach. (Woolley agt. Newcombe, 87 N. Y., 605.)

29. The reason of the rule of the common law imposing the burden of proof upon the defendant, which rule was followed in this state prior to the passage of the recording act (Abbott agt. Allen, 14 Johns., 248), is to be found in the English system of conveyancing; since the passage of that act the reason for the rule fails, and it has no longer any founda tion to rest upon. (Id.)

30. Allegations in a complaint in

such action that defendant was not the true owner, and was not seized of the premises in fee are

sufficient; it is not essential that the title should be set out in detail. (Id.)

See CREDITORS' ACTION.

Herring agt. New York, Lake Erie & Western R. R. Co., ante, 497.

PLEDGOR AND PLEDGEE.

1. On the 10th day of March, 1874, H. being indebted to. S. in the sum of forty-one dollars and fifty cents, delivered to him a receiver's certificate of the N. Y. and O. M. R. R. Co., by which it was certified that the bearer of it was entitled to receive out of the assets of said road as they came into the hands of the receivers, $100 and interest. S., when he took the certificate, agreed that when the debt was paid he would deliver it to H., or if collected he would pay the balance to him after deducting the costs of collection. In December, 1879. H. tendered to S. his debt and interest, and de manded the certificate, which S. did not deliver, saying he had sold it. In an action by H. against S.:

Held, that H. was entitled to recover the value of the certificate as of the time of the tender to S. of the amount of his debt and demand of the certificate. (Hopper agt. Smith, ante, 34.)

2. The sale by S. in March, 1878, was not of itself a conversion and did not, against the will of H., create a cause of action in his favor against S., for the conversion of the certificate so as to require H.'s damages to be the value of the certificate at that time, with interest. On the contrary, the cause of action did not accrue until the demand and refusal, and the measure of damages is the value at that time. (Id.) 3. The stock cases, Markham agt. Jandon (41 N. Y 235), Baker agt.

Drake (53 N. Y., 211), Gruman agt. Smith (81 N. Y., 25), and the cases of sales by factors, cited and distinguished. (Id.)

PRACTICE.

1. Under the practice, as it stood before the Code of Civil Procedure, a notice of motion signed by an attorney was a general appearance in the action and when an attorney had appeared in an action no change of attorneys could be made without an order. (Couch agt. Mulhane, ante, 79)

2. But, under sections 421 and 422 of the Code of Civil Procedure, until an attorney serves a formal notice of appearance or a pleading, he has no general standing in the cause, either to bind or protect his client; and an attorney for plaintiff who has received motion papers from an attorney for defendant, or has given time to an attorney for defendant to answer, can proceed in all other respects as if defendant had not appeared. (Id.)

3. Demurrer amended by the service of an answer where the defendants served a demurrer, which the plaintiff moved against as frivolous, and the defendants after service of the notice of motion, and the day before that named for the argument thereof, and within the time allowed by law to amend, served an answer by way of an amended pleading:

Held, that the motion for judg ment abated in consequence of the amendment, and that the plaintiff's only remedy was to make an independent motion to strike out the amended pleading, upon proof that it was interposed for delay. Section 542 of the Code of Civil Procedure construed. (Frank agt. Bush, ante, 282.)

4. In this action, brought to foreclose a mortgage, the mortgagor