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:
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.
A formal reply to a counterclaim is not necessary.
The counterclaim shall be deemed denied by the plaintiff unless specifically
admitted on the trial. It also may be objected to on motion.
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.
If either party is entitled to judgment upon
the pleadings, the Court may, on motion at any time after issue joined,
give judgment accordingly.
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.
The allegations of a pleading must be liberally
construed, with a view of substantial justice between the parties.
A variance between an allegation in a pleading
and the proof must be disregarded as immaterial, unless the Court
is satisfied that the adverse party has been misled thereby, to his
prejudice.
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.
In an action or special proceeding brought by
or against a corporation, the defendant is deemed to have waived any
mistake in the statement of the corporate name, unless the misnomer
is pleaded in the answer.
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.
The Court in which a new action is to be brought,
as prescribed in the last section, is the Supreme Court or the County
Court of Albany County, at the plaintiff's election.
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 the undertaking is not delivered to the Court,
it has jurisdiction of the action, and must proceed therein, and the
defendant is precluded in his defense from drawing the title in question.
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.
