Pleadings shall consist of a complaint, answer and, when ordered, a reply and they may be oral or written, verified or unverified, except that the pleadings in an action to foreclose a mechanic's lien shall be verified. In actions involving an amount in excess of one thousand dollars ($1,000.), exclusive of interest and costs, the complaint shall be in writing and, if not served with the summons, shall be filed with the Court on or before the return date of the summons.
A. 
Where the action is commenced by the service of a summons only, the pleadings except as otherwise expressly provided by this Part 2 may be oral, and the substance thereof shall be entered in the docket book of the Court. Issue must be joined on the return day of the summons, except as otherwise expressly prescribed in this Part 2.
B. 
If a verified complaint is served with the summons, a verified answer must be filed and issue joined on the return date, unless the Court further extends the time to answer; provided, however, that in an action where the amount claimed is twenty-five dollars ($25.) or less, the defendant, if he appears in person, may answer orally. In an action involving an amount in excess of one thousand dollars ($1,000.), exclusive of interest and costs, the defendant upon appearing shall be required to file a written answer within one (1) week from the return date of the summons, unless the Court further extends the time therefor. If a counterclaim involving an amount in excess of one thousand dollars ($1,000.), exclusive of interest shall be interposed, all the pleadings in the action shall be reduced to writing by the respective parties and filed within the time therefor directed by the Court.
C. 
Where, on the return date of a summons, a person appears specially for the purpose of raising a question not involving the merits of the action, the Court may, in its discretion, reserve decision on the question raised and extend the time to plead.
D. 
The procedure for obtaining a copy of the items of an account, or a bill of particulars, shall be that prescribed in the Civil Practice Act[1] and rules adopted pursuant thereto, except that the periods of time prescribed by any rule of civil practice relating thereto may be changed by rule of this Court. The original of any bill of particulars, or items of an account, shall be filed with the Clerk within the same time that the service of a copy thereof must be made on the adverse party or his attorney.
[1]
Editor's Note: See now the Civil Practice Law and Rules.
The plaintiff may include in the same complaint any cause of action of which the Court has jurisdiction, to the end that any matters in difference between the respective parties may, so far as practicable be determined in one (1) action; but if it appears to the Court that causes of action so joined should not be tried or disposed of together, the Court may order them to be tried separately, or that the action be severed, and make such other and further orders as may be necessary or expedient for the separate disposal thereof.
If a defendant fails to appear and answer, the plaintiff cannot recover without proving his case, except in a case specified in § 48 of the Lien Law, and except that where the action is on a contract, express or implied, and a copy of a verified complaint was served on the defendant at the time of the service of the summons, judgment may be taken as demanded without further proof. Where the defendant has defaulted either in appearance or in pleading, the adjournments of the inquest or taking of judgment on the application of the plaintiff shall not exceed ninety (90) days from the return of the summons.
When an answer is served in an action to recover a debt or liquidated demand arising, on a contract, express or implied, sealed or not sealed, or on a judgment for a stated sum, the answer may be struck out and judgment entered thereon on motion, and the affidavit of the plaintiff or of any other person having knowledge of the facts, verifying the cause of action and stating the amount claimed, and his belief that there is no defense to the action; unless the defendant by affidavit, or other proof, shall show such facts as may be deemed, by the Justice hearing the motion, sufficient to entitle him to defend. If it appear that such defense applies only to part of the plaintiff's claim, or that any part be admitted, the plaintiff may have final judgment forthwith for so much of his claim as such defense does not apply to or as is admitted, on such terms as may be just, and the action may be served.
The defendant may upon the return of the summons, and before answering, file with the Court a written offer to allow judgment to be taken against him for a sum of money, or for property therein specified with costs. If there are two (2) or more defendants, and the action can be severed, a like offer may be made by one (1) or more of the defendants, against whom a separate judgment may be taken. If the plaintiff thereupon, before taking any other proceeding in the action, files with the Court a written acceptance of the order, the Court must render judgment accordingly. If an acceptance is not filed, the offer cannot be given in evidence upon the trial; but if the plaintiff fails to obtain a more favorable judgment he cannot recover costs from the time of the offer, and must pay the defendant's costs from that time. But a defendant may, instead of such written offer, deposit the amount of his offer, if a sum of money, with the Clerk of the Court, with like effect.
The complaint must state in a plain and direct manner the facts constituting the cause of action.
The answer must contain:
A. 
A general or specific denial of each material allegation of the complaint intended to be controverted, or a denial of any knowledge or information thereof sufficient to form a belief. A denial must not be evasive, and unless the defendant intends in good faith to controvert all the allegations of the complaint or of a particular part thereof, the denial must be directed to the specific allegation intended to be controverted.
B. 
A plain and concise statement of any new matter constituting a defense or counterclaim.
C. 
When the judgment may determine the ultimate rights of two (2) or more defendants as between themselves, a defendant must demand such a determination in his answer, which must be in writing; and a copy of such answer must be served at least two (2) days before trial, or at such other time as the Court shall direct on each defendant to be affected by the determination or upon his attorney in the action.
A counterclaim, except as otherwise provided by statute, must tend to diminish or defeat the plaintiff's recovery, and must be one (1) of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the defendant, or of one (1) or more defendants, between whom the plaintiff or the plaintiff and another person or persons alleged to be liable, a separate judgment may be had in the action:
A. 
A cause of action arising out of a contract or transaction set forth in the complaint as the foundation of the plaintiff's claim or connected with the subject of the action.
B. 
In an action on contract, or any other cause of action on contract existing at the commencement of the action.
There may be included in the counterclaim any claims or causes of action of which the Court has jurisdiction against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of one (1) or more defendants between whom and the plaintiff a separate judgment may be had in the action. But if it appears to the Court that any of the claims or causes of actions so joined should not be tried or disposed of together, the Court may order that they may be tried separately, and may make such other and further orders as may be necessary or expedient for the separate disposal thereof; and if it appears to the Court that any claim or cause of action alleged by way of counterclaim should not be tried or disposed of in the pending action, the Court may strike it out, without prejudice to the bringing of another action or proceeding.
But the counterclaim, specified in § 30-129B, is subject to the following rules:
A. 
If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant in good faith before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the party or the assignee, while the contract belonged to him.
B. 
If the action is upon a negotiable promissory note or bill of exchange which has been assigned to the plaintiff after it became due, a demand existing against a person who assigned or transferred it after it became due must be allowed as a counterclaim to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him.
C. 
If the plaintiff is a trustee for another or if the action is in the name of the plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought as will satisfy the plaintiff's demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested.
Where a counterclaim is established which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess, or so much thereof as is due from the plaintiff; the judgment does not prejudice the defendant's right to recover from another person so much thereof as the judgment does not cancel.
In a case not specified in the last section, where a counterclaim is established which entitles the defendant to an affirmative judgment demanded in the answer, judgment must be rendered for the defendant accordingly.
In an action against an executor or administrator, or other person sued in a representative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him.
In an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belonging at the time of his death to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his lifetime; and, if a balance is found to be due to the defendant, judgment must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment only in a case where it could be issued upon a judgment in an action against the executor.
Where the defendant has a counterclaim which is in excess of the amount of the jurisdiction of this Court, the counterclaim may be interposed, and in the event of judgment being rendered in the defendant s favor, sustaining said counterclaim, said judgment shall not be for any larger sum in any event than the sum of which the Court has jurisdiction, exclusive of costs, but nothing in this section shall be construed to stop such a defendant from bringing an action against the plaintiff for the difference between the sum of the Court's jurisdiction, and the sum claimed by said defendant to be due unless the judgment shall state that the sum awarded by the judgment is the whole amount found to be due.
An objection that the Court has no jurisdiction of the person of the defendant or no jurisdiction of the subject of the action may be taken by motion, and all other objections which heretofore might have been taken by demurrer may be taken by motion.
An objection to the sufficiency of the complaint, or an objection which, if sustained, disposes of the action without putting the plaintiff to his proof, may be taken by alleging it as a defense in the answer in lieu of a motion, and on application of either party it must be disposed of before the trial. When an objection is thus taken, the answer must specify the particular objection or defect upon which the defendant relies.
A. 
If the Court overrules a defendant's objection taken by motion, the Court must allow him to answer, and as a condition thereof, may impose costs.
B. 
If the Court sustains an objection taken by a motion or answer upon the ground that the pleading is insufficient, the Court must allow it to be amended; and as a condition thereof may impose costs; and if the party fails to amend, the defective pleading or part of pleading may be struck out.
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 on the information and belief of the party, they must be regarded, for all purposes, as having been made on 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 purpose, be regarded as an allegation that the person verifying the pleading has no such knowledge or information.
The verification must be made by the affidavit of the party, or, if there are two (2) or more parties united in interest and pleading together, by at least one (1) of them who is acquainted with the facts, except as follows:
A. 
Where the party is a domestic corporation, the verification must be made by an officer thereof.
B. 
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.
C. 
Where the party is a foreign corporation; or where the party is neither within the City of Albany nor within the county where the attorney resides; or, if there are two (2) or more parties united in interest and pleading together, where neither of them acquainted with the facts is within such City or county and capable of making the affidavit; or where the action or defense is founded on 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 any case the verification may be made by the agent of or the attorney for the party.
The Court may at the time of pleading, or at any other time before the trial, require the plaintiff or defendant to exhibit to the inspection of the adverse party, with liberty to copy the same, any writing or account declared on or set up in the way of offset or counterclaim, or if not so exhibited, may prohibit its afterward being given in evidence.
The Court must, upon application, allow a pleading to be amended, at any time, if substantial justice will be promoted thereby. Where a party amends his pleading, after joinder of issue, or pleads over upon the decision of a motion and it is made to appear to the satisfaction of the Court, by oath, that an adjournment is necessary to the adverse party, in consequence of the amendment or pleading over, an adjournment must be granted. The Court may also, in its discretion, require, as a condition of allowing an amendment, the payment of costs to the adverse party.
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.
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.
In pleading the performance of a condition precedent in a contract it is not necessary to state the facts constituting performances, 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.
A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense on the merits. If a party insists that he has been misled, that fact and the particulars in which he has been misled must be proved to the satisfaction of the Court. Thereupon the Court may in its discretion order the pleading to be amended on such terms as it deems just.
Where, however, the allegation to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance within the last two (2) sections, but a failure of proof.
A partial defense may be set forth, but it must be expressly stated to be a partial defense to the entire complaint, or to one (1) or more separate causes of action therein set forth. On objection thereto by motion the question is whether it is sufficient for that purpose. Matter tending only to mitigate or reduce damages in an action to recover damages for a personal injury, or an injury to property, is a partial defense within the meaning of this section.
In an action brought by or against a corporation, the complaint must aver that the plaintiff, or the defendant, as the case may be, is a corporation; must state whether it is a domestic corporation or a foreign corporation; and, if the latter, the state, country or government by or under whose laws it was created. But the plaintiff need not set forth, or specially refer to, any act or proceeding by or under which the corporation was created.
In an action brought by or against a corporation, the plaintiff need not prove upon the trial the existence of the corporation unless the answer is verified and contains an affirmative allegation that the plaintiff, or the defendant, as the case may be, is not a corporation.
The defendant may, either with or without other matter of defense, set forth in his answer facts showing that the title to real property will come in question. Such an answer must be in writing, and it must be signed by the defendant, or his attorney or agent, and delivered to the Court. The Court must, thereupon, countersign the answer, and deliver it to the plaintiff.
In the case specified in the last section, the defendant must also deliver to the Court, with the answer, a written undertaking, executed to the effect that, if the plaintiff, within twenty (20) days hereafter, deposits with the Court a summons and complaint in a new action, for the same cause, to be brought in the proper court, as prescribed in the next section, the defendant will, within twenty (20) days after the deposit, give a written admission of the service thereof. Where the defendant was arrested in the action before the Court, the undertaking must further provide that he will, at all times, render himself amenable to any mandate which may be issued to enforce a final judgment in the action so brought. If the defendant fails to comply with the undertaking, the sureties are liable thereupon to any amount for which judgment might have been rendered by the City Court, if the answer and undertaking had not been delivered.
Upon the delivery of the undertaking to the Court, the action is discontinued, and each party must pay his own costs. If the plaintiff fails to deposit with the Court a summons and complaint in the new action, before the expiration of twenty (20) days after the delivery of the undertaking, the defendant may maintain an action against the plaintiff to recover costs before the Court.
If, however, it appears upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the Court must dismiss the complaint with costs, and render judgment against the plaintiff accordingly.
In the new action, to be brought after an action before a court is discontinued, by the delivery of an answer and an undertaking, as prescribed in the last six (6) sections, the plaintiff must complain for the same cause of action only upon which he relied before the Court, and the defendant's answer must set up the same defense only which he made before the Court. If the action is to recover a chattel which was replevied in the City Court, each undertaking, given in the City Court, continues to be valid in and is applicable to the new action.
Where in an action before the Court the plaintiff has two (2) or more causes of action, and the defense that the title to real property will come in question, is interposed as to one (1) or more, but not as to all of them, the defendant may deliver an answer and undertaking as prescribed in this article, with respect to the cause or causes of action only, in which title will so come in question. Whereupon the Court must discontinue the action as to those causes of action only, the plaintiff may commence a new action therefor in the proper court and the original action must proceed as to the other causes.
A defendant against whom an action to recover upon a contract, or an action to recover a chattel, is pending, may, at any time before answer, upon proof, by affidavit, that a person, not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the Court, upon notice to that person, and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property, or its value, to such person as the Court directs; or upon it appearing that the defendant disputes, in whole or in part, the liability as asserted against him by different claimants, or that he has some interest in the subject matter of the controversy which he desires to assert, his application may be for an order joining the other claimant or claimants, as codefendants with him in the action. The Court may, in its discretion, make such order, upon such terms as to costs and payments into court of the amount of the debt, or part thereof, or delivery of the possession of the property, or its value or part thereof, as may be just, and thereupon the entire controversy may be determined in the action.