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Gebhard v. Parker, 120 N. Y., 33.

plaintiffs had the right to so treat the defendants for the purpose 6 of charging them with liability for the goods. It is assumed by the counsel for the parties that the verdict of the jury had the support of evidence: But assuming as urged by the defendant's counsel, that the exception founded upon the failure of the plaintiffs to furnish a bill of items in compliance with demand, presents the question of practice in that respect for consideration, the inquiry arises whether it was error to permit the introduction of the evidence of the sale and delivery of the goods.

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The statute provides that the party alleging an account in his pleading must deliver to the adverse party, within ten days after a written demand thereof, a copy of the account, and "if he fail so to do he is precluded from giving evidence of the account." (Code § 531). The provisions of the old Code provided that a party of whom such demand was made should, within the same time, deliver to the adverse party a copy of the account, "or be precluded from giving evidence thereof." (158). Prior to the Code the preclusion of evidence of an alleged account of which a bill of particulars had been demanded was dependent upon an order to that effect, and such was the 8 practice pursued under the old Code. (Kellogg v. Paine, 8 How. Pr,. 329; W. & P. R. R. Co. v. Meyers, 16 Abb. Pr. Rep. (N. S.), 34; Moore v. Belloni, 10 J. & S., 184). The difference between the language of those provisions of the two Codes is verbal rather than substantial, and there is no less reason for the continuance of the rule of practice under the latter than existed when the provisions of the earlier statute were in force. Neither provided for an order except in the event that the account delivered should be defective, in which case provision was made in both statutes that the court or a judge was authorized by order to direct the delivery of a further account. It seems that the demand is effectual to give the party a right to a copy of the account so called for, and that the penalty for failure to comply with it is the preclusion of evidence of the account on the trial. Thus far the statute is plain. But the manner of executing this provision of the statute is a matter of practice; and it should not be such as to subject to surprise the party of whom a demand is claimed to have been made. This

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Badeau v. Niles, 9 Abb. N. C., 48.

10 situation might arise under some circumstances which may be imagined. The better rule of practice is that the execution of the penal provision of this statute be dependent upon an order. The parties then may act advisedly, and the trial court, when the admissibility of evidence of the account arises, will be embarrassed by no collateral inquiry into the facts upon which the right of the parties in that respect may depend. By means of an order made upon application preliminarily to the trial, or to the disposition of the question of the admissibility of the evidence, the purpose and mandate of the statute may be effectuated without surprise or unnecessary prejudice to any of the parties.

The reception of the evidence was not error.

The judgment should be affirmed.

All concur except VANN, J., not voting.
Judgment affirmed.

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BADEAU v. NILES.

New York Supreme Court, First Department; Special
Term and Chambers, 1880.

[Reported in 9 Abb. N. C., 48.]

Evidence by which a cause of action may be established upon the trial should not be pleaded, but only the facts constituting the cause of action.

Motion to strike out portions of the complaint.

This action was brought by Marie E. Badeau (a cestui que trust), individually and as executrix and trustee under the will of Nathaniel Niles, deceased, against Nathaniel Niles, as executor and trustee under the said will, Amelia R. Wilbaux (a cestui que trust), individually, and as executrix and trustee under the said will, and others interested in the will, to remove the said Nathaniel Niles from his trusteeship and to restrain him from further acting as executor.

The complaint, which charged the defendant, Nathaniel Niles, with misconduct and mismanagement of the estate, contained

Ward v. Ward, 5 Abb. Pr. Rep. (N. S.), 145.

extracts from his sworn accounts, and examinations as to them, 2 and also from examinations in another action, and from affidavits, and a list of vouchers, and criticisms upon the whole.

The defendant moved to strike out these from the complaint as irrelevant and redundant.

LAWRENCE, J. The motion to strike out the portions of the complaint specified in the notice of motion should, I think, be granted. The allegations objected to relate rather to the evidence by which a cause of action may be established upon the trial, than to a statement of the facts constituting a cause of action. Even under the Code, I do not understand that it is proper to plead the evidence by which a cause of action is to be established. In other words, the resultant, not the evidentiary, facts should be pleaded. $10 costs to defendant to abide event.

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WARD v. WARD.

Supreme Court, First District, Special Term, 1868.

[Reported in 5 Abb. Pr. Rep. (N. S.), 145.]

The remedy for superfluous matter in a complaint-such as an allegation of abandonment, in an action for divorce on the ground of adulteryis by motion, not by demurrer, although such matter be stated in a form appropriate to a separate cause of action.

The action was brought for an absolute divorce. The plaintiff in the first four paragraphs of the amended complaint, averred that the parties were married, had one child, and that the defendant had without his consent abandoned him. The fifth paragraph" for a further cause of action," averred the adultery of the defendant. A general prayer for judgment granting a divorce a vinculo, and the custody of the child, closed the complaint.

The defendant demurred on the grounds: 1. That several alleged causes of action were improperly united. 2. That the abandonment did not constitute a valid cause of action.

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Deyo v. Morss, 144 N. Y., 216.

INGRAHAM, J. There is but one cause of action stated in this complaint, viz.: the adultery. The allegation that the defendant has abandoned and deserted her husband is no ground of divorce, and is improperly inserted in the complaint, but it is not stated as a cause of action, nor is any relief asked for on account of that fact.

The statement in the 5th paragraph, "that for a further cause of action he states, etc.," does not show that there are two causes in the complaint (Hillman v. Hillman, 14 How., 456).

The proper rule is laid down in Meyer v. Lent, 7 Abb. Pr., 225, viz.: that in such cases the remedy is by motion, and not by demurrer.

Judgment for plaintiff on demurrer, with leave to answer, etc., and without prejudice to a motion to strike out.

Note. In Gassett v. Crocker, 10 Abb. Pr., 133, defendant alleged in his answer that certain third persons, whose interest in the subject matter of the action appeared from the complaint, were necessary parties to the action, without whose presence a complete determination of the controversy could not be had. Plaintiff moved to strike out such part of the answer.-Held, the motion should be granted, it being in substance, a

4 demurrer to the complaint for defect of parties. That such objection is waived if not taken by demurrer, as it appears on the face of the complaint, and the allegation in the answer constitutes no defence to the action, is clearly irrelevant and should be stricken out.

DEYO v. MORSS.

New York Court of Appeals, Dec., 1894.

[Reported in 144 N. Y., 216; rev'g 74 Hun, 224.]

1. Upon application before trial the court has power, in its discretion, to allow an amendment of a pleading so as to substitute a different cause of action upon the same general grounds.*

2. A stipulation, the plain object of which is to enable the parties to do what the court upon application might authorize to be done, authorizes such an amendment.

* But such an amendment cannot be allowed at the trial (Fisher v. Rankin, 25 Abb. N. C., 191; s. c., p. 204 of this vol.); nor after the trial (Southwick v. First Nat. Bank, 84 N. Y., 420; s. c., p. 154 of this vol.).

Deyo v. Morss, 144 N. Y., 216.

3. The principle is the same as in the case of an amendment of course before the twenty days from the service of the original pleading have expired, under Code Civ. Pro., § 542, where a change of cause of action may be made.

The original complaint was in the nature of a creditor's suit to 1 reach lands alleged to have been fraudulently transferred to defendants. After issue was joined, plaintiff's attorney obtained a stipulation allowing him on giving notice of electing so to do, "to serve an amended and supplemental complaint, or either." He subsequently served an amended complaint seeking to charge defendants as devisees of the same lands of the deceased debtor, under §§ 1837-60, Code Civ. Pro.

The Special Term of the Supreme Court denied defendants' motion to strike out the amended complaint.

The General Term reversed the order, holding that the stipulation did not authorize the abandonment of the original cause of action and the substitution of a new one.

The Court of Appeals reversed the order of the General Term, and affirmed the order of the Special Term.

ANDREWS, Ch. J. The stipulation authorized the plaintiff's attorney to serve an amended or supplemental complaint, reserv- 3 ing to the defendants the right to make such motion in relation thereto as they should be advised, and it authorized the defendants to serve an amended or supplemental answer. Before the stipulation was made both parties contemplated making an application to the court for permission to serve amended pleadings. The plain object of the stipulation was to enable the parties, without notice, to do what the court upon application might authorize to be done. The plaintiff's attorney thereupon served an amended complaint, setting out a cause of action based on the statute, art. 2, title 3, chapter 15, of the Civil Code, 4 against the defendants as devisees, to recover the proceeds of real estate devised to them, situated in the state of Pennsylvania, which they had conveyed. The action was brought by the plaintiff as creditor of the decedent, in behalf of himself and all

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