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When it is desired to use the complaint as an affidavit (§ 3343, sub. 11) in applying for an order of arrest (SS 549, 557); or an injunction ($ 607) or an attachment ($ 636) or for any other order.

. 3. Folioing. (Rule 19.)

4. Endorsing object of action on summons in some cases when served without complaint, SS 1774, 1897, 1964.

5. Date is not essential and rarely conclusive of anything. But dates of verification or service are important and may determine a legal right.



[NOTE.— We will class as Technical those that can be waived without affecting the merits or result of the action ; as Formal, those which, although relating to the form of the proceeding and not affecting the substance, may, if waived, affect the merits or the result. Technical and Formal Objections are not favored by the courts, and should not be raised without due caution and discretion. A note to the attorney of the adverse party is usually better than a motion.)


1. Omission to sign-return promptly, with notice. Rule No. 19.

2. Omission to folio-same remedy. II.

3. Tardy service-if proceedings for want of timely service have been or are to be taken, it may be useful to return with notice.

4. Letter-press copy-return promptly, with notice. Rule No. 19.

5. Illegibility-same remedy. Id.


1. Omission of court and place of trial-if not supplied by summons, may move to set aside the complaint; but if summons is correct, defect is amendable. Davison v. Powell, 13 How. Pr., 287.

2. Misnomer of plaintiff or defendant-plead it in answer. Traver v. Eighth Ave. R. R. Co., 4 Abb. Ct. of App. Dec., 422.

3. Wrong place of trial—have it changed by demand or motion. Code Civ. Pro., SS 985, 986.

4. Omission of title-return, with notice; or may move to set aside the complaint. Swift v. Smith, 4 Mo. Law Bull., 87. [If the names of the parties do not appear as well in the body of the pleading, the defect is substantial.]

5. Departure from summons—move to set aside the complaint and any proceedings that have been founded upon it. Allen v. Allen, 14 How. Pr., 248.

6. Indefiniteness and uncertainty-often a substantial objection. (See below, III, 20.) (At common law, a special demurrer is taken; but under Code Civ. Pro., demurrer will not lie. Milliken v. West. Un. Tel. Co., 110 N. Y., 403.) Remedy: move to compel to make more definite and certain, before answering. N. Y. Code Civ. Pro., 546; Court Rule 22; Armstrong v. Danahy, 75 Hun, 405.

7. Too great generality to enable to plead or to prepare for trial (generally a substantial objection, see below III, 17.)move for bill of particulars; or, if necessary, move in the alternative, to make more definite, etc., or for particulars; or both. Note as to the distinction between these two species of relief, p. 239 of this volume. Code Civ. Pro., $ 531.

8. Commingled statement of several causes of action-cannot demur if the causes are such as could be joined in the same complaint, for then it is not a misjoinder. Bass v. Comstock, 38 N. Y., 21. Move to compel separate statement and numbering. Wood v. Anthony, 9 How. Pr., 78; or, perhaps, to strike out all the allegations not appropriate to a single cause of action. Waller v. Raskan, 12 How. Pr., 28; Code Civ. Pro., $ 483.

9. Irrelevant, redundant or scandalous matter-move to strike out. Code Civ. Pro., $ 545. Motion must be made before answering or demurring. Rule 22; Williams v. Folsom, 57 Hun, 128.

10. Argumentativeness—motion to make more definite and certain. Marie v. Garrison, 83 N. Y. 14; s. C., p. 383 of this vol. and see below.


1. Ostensible attorney not member of the bar-appear specially and move to set aside all proceedings. Code Civ. Pro., $ 64.

2. Action not authorized by plaintiff--same remedy, or, plead want of authority, as a defence.

3. No leave to sue, when leave is required by rule of court or by statute-move to stay, or to set aside all proceedings. Abb. Brief on Pl., p. 249.

May demur for insufficiency, if a statute makes leave to sue part of the cause of action. Id.; Palmer v. Davis, 28 N. Y., 242.

4. Complaint not served with summons-demand copy, and if demand not complied with, move to dismiss. Code Civ. Pro., SS 479, 480.

5. Nonconformity of copy served with original- move to strike original from records or to set aside service. Boston Natl. Bank v. Armour, 50 Hun, 176.

6. Vexatiousness of suit-move to stay proceedings.

7. Service on the wrong person-if in doubt as to whether he may not be bound to appear, appear specially and move to set aside the service and the proceedings founded thereon.*

8. Lack of jurisdiction of the subject matter-motion to vacate summons and dismiss the complaint; demurrer or answer; or objection at the trial. Robinson v. Oceanic Steam Nav. Co., 112 N. Y., 315; s. c., p. 356 of this vol.; Code Civ. Pro., SS 488, 490. This lack of jurisdiction may depend on residence. Gilbert v. York, 111 N. Y., 544; s. c., p. 347 of this vol.; Wheelock v. Lee, 74 N. Y., 495 ; s. c., p. 352 of this vol.; Robinson v. Oceanic Steam Nav. Co., supra.

9. Lack of jurisdiction of the person, for defect in service-appear specially and move to set aside all the proceedings. Nones v. Hope Mut. Life Ins. Co., 5 How. Pr., 96; s. C., p. 401 of this vol.

10. Lack of jurisdiction of the person because absolutely exempt; e. g., the state, or a foreign ambassador or consul, sued in a state court-appear specially, and move to set aside all proceedings; or demur or answer; or take objection at the trial.*

* It may be that judgment on default would be void for want of juris

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Compare Code Civ. Pro., $ 488, sub. 1.; Davis v. Packard, 7 Pet., 278.

11. Lack of capacity to sue-demur or answer; objection cannot be first taken at the trial. N. Y. Code Civ. Pro., $ 488, sub. 3., $ 499. Nanz v. Oakley, 122 N. Y., 631.

12. Lack of guardian ad litem-stay till appointment, or, move to set aside proceedings for irregularity. Freyberg v. Pelerin, 24 How. Pr., 202.

13. Misjoinder of plaintiffs--demur or answer; objection cannot be first taken at the trial. $ 488, sub. 4., $ 499.

14. Misjoinder of causes of action (as distinguished from commingled statement of joinable causes) - demur. (Motion before or at the trial to compel election is inappropriate where misjoinder is clear, because the Code provides that this objection may be deemed waived, if not taken by demurrer or answer, $ 488, sub. 7.) But causes which can be joined may be inconsistent, in which case you may move before trial; and the court have power to compel election even at the trial. See note in 24 Abb. N. C., 326.

15. Defect of parties—demur or answer. $ 488, sub. 6. If the absentee is an “indispensable” party, objection can also be made at the trial. Bear v. American Rapid Tel. Co., 36 Hun, 400. As to motion to bring in adverse claimant see p. 179 and


185 of this vol., and Code Civ. Pro., $ 820.

16. Former action pending-demur if it appear on the face of the complaint, or answer if it do not. $ 488, sub. 4; 26 Abb. N. C., 218.

17. Insufficiency of facts to constitute a cause of action--demur or answer; or object at the trial before evidence taken. $ 488, sub. 8.

18. Alternative allegations—if the result is prejudicial uncertainty, move to make more definite and certain; but an alternative allegation is never stronger than its weakest branch. Abb. Br. on Pl., p. 40, $ 46.

19. Inconvenient generality—ask and if necessary move for Bill of Particulars. (See above II., 6.)

20. Lack of copy of account mentioned in complaint-demand copy. $ 531. If not served in compliance with demand, move that he be precluded from giving evidence of the account. Gebhard v. Parker, 120 N. Y., 33 ; s. C., p. 579 of this vol.

21. Lack of document alleged as part of plaintiff's case- -Bill of Particulars, $ 531; or petition for Discovery and Inspection, $ 803; Holmes 0. Cornell, 7 Weekly Dig., 375.

22. Indefiniteness and Uncertainty; if not amounting to substantial insufficiency to constitute a cause of action (in which case demurrer lies)-move to make more definite and certain. (See above II., 5.)

23. Legal conclusion, without facts to bear it out- demur, or move to make more definite and certain, or object at the trial. Abb. Br. on Pl., $3 40, 535, 563. Taking issue specially on the allegation usually precludes objection at the trial. Id.; Weinhauer v. Morrison, 49 Hun, 498.

24. Inconsistent allegations in the same cause of actionmotion to make more definite and certain. If fatal to the truth of a material allegation demurrer lies.


25. Inconsistent allegations in separate causes of action-motion to make more definite and certain ; or to compel election; or, if they cannot be joined, demur for misjoinder.

26. Cause of action, statute barred—if by statute of limitations, by answer. $413.

Staleness of demand in an action of an equitable nature—that the objection should also be taken by answer and not by demurrer, see Zebley v. Farmers' Loan & Trust Co., 139 N. Y., 461.

27. Lack of verification, when same is required by law; as in an action against a joint debtor not originally served, S 1938 remedy, return immediately, with notice, or move to set aside. (A defective verification may be treated as no verification. $ 528.) 28. Letter press copy; return immediately, with notice. Rule

No. 19.

29. Omission to folio-return immediately, with notice. I. 30. Omission to endorse---return immediately, with notice. Id.

31. Demand for wrong relief-demur for insufficiency, if the facts alleged entitle the plaintiff to no part of the relief demanded. Code Civ. Pro., $1207; Edson v. Girvan, 29 Hun, 422. But if the relief demanded be merely more or less than the plaintiff is entitled to, a demurrer does not lie, and the defect should be disregarded. Buess v. Koch, 10 Hun, 299.

Issue cannot be taken by answer to the demand for relief.

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