counties of the State, for a libel which was published in the county in which all the parties resided. These actions were all commenced at the same time, and against the same defendants; held, that a motion to consolidate the actions into one must be granted, and that it might be made anywhere in the district containing the county in which any of the actions sought to be consolidated was brought. Percy v. Seward, 6 Abb. 326. e. Appeal.-No appeal can be taken from an order granting or refusing a motion to consolidate; the whole question rests entirely with the court. It is the usual practice of the courts to graut the motion, where it is shown that the plaintiff will not be prejudice, and the grounds of the motion are not denied. 2 R. S. 383; Dunning v. Bank of Auburn, 19 Wend. 23. f. Insurance policies.-Where separate actions are commenced upon different policies of insurance, though on the same risk, they cannot be consolidated. Each contract is separate and independent of the other, and must be determined by itself. Camman v. New York Insurance Co. 1 Caines, 114. g. Libel.-Where an action is commenced against the editor, and another against the publisher of a newspaper in which a libel appeared, a motion to consolidate the two will be denied. Cooper v. Wced, 2 How. 40. h. Plaintiff may move.-The plaintiff, as well as the defendant, may move to consolidate several actions under this section, and if the motion is granted, the plaintiff must pay costs of the consolidated actions, as well as the costs of the motion. Briggs v. Gaunt, 4 Duer, 664; S. C. 2 Abb. 77. i. Mechanics' lien.-Where a party is made a defendant in an action to foreclose a mechanic's lien, and all the equities of both parties can be passed upon in this action, he is not obliged to file a lien to protect a claim of his own, arising out of the same transaction, and on the same premises. It is never proper, in such a case, to consolidate the two actions; the second will be dismissed on motion. Graff v. Rosenburgh, 6 Abb. N. S. 428 (n). j. Statutory penalty.- The plaintiff commenced sixty-four suits, all of which were at issue, for the recovery of a statutory penalty. The court refused to consolidate them, on the ground that it would render the trial very protracted and embarrassing; but as the suits were of two general classes, the court held that the plaintiff must select one from each of the two classes for trial, and suspended the remaining actions pending the adjudication, with liberty to him (the plaintiff) to renew the motion after trial. Clark v. Metropolitan Bank, 5 Sandf. 665. k. Affidavit necessary.-Where actions sought to be consolidated are to be defended, the affidavit of the party making the motion, must show that the questions involved in them are substantially the same in all the actions; but unless the nature of the defense be stated, the defenses must be shown to be identical. Dunn v. Mason, 7 Hill, 154; Wilkinson v. Johnson, 4 id. 46. See opinion of INGRAHAM, J., Howe v. Farmers' Bank of Ohio, not reported; cited in Voorhies' Code, 336, note c. But the defendant need not make an affidavit of merits. Brewster v. Stewart, 3 Wend. 441, 442. 1. Foreclosure suit.-Semble, that actions of this character will never be consolidated, under any circumstances. Grant v. Spencer, not reported, cited in Voorhies' Code, 336, note f. m. Old rules.-The common law rules, which prevailed prior to the Code, have not been materially changed; the question now as then is, are the defenses identical, and are the questions involved substantially the same. Wilkinson v. Johnson, 4 Hill, 46. See, however, Pierce v. Lyon, 3 Hill, 450; where it is held, that where the defendant sought to prevent the collection of one of the debts, and the plaintiff would be prejudiced, that the motion should be denied. n. Amended complaint.-The plaintiff should not make his motion to consolidate, until the defendants have answered in all the cases. If the plaintiff should be obliged to amend his complaint, the order to consolidate could not be issued until the time to answer the amended complaint had expired. Le Roy v. Bedell, 1 Code R. N. S. 201. o. Miscellaneous examples.-Where three obligors of a joint and several bond were sued in separate actions, the court ordered a stay of proceedings in two of the actions, and ordered the other to be tried. Anderson v. Towgood, 1 Ad. & El. N. S. 245. Where two actions not identical are pending in different courts between the same parties depending upon different facts and circum stances, although relating to the same subject matter in part, still this will furnish no ground for staying proceedings in either action, especi ally if they were commenced at different times Sorley v. Brewer, 18 How. 509. See Toll v Thomas, 15 id. 315. p. Stipulation.-Where a party agrees that his action shall abide the event of another, it will be no excuse that he did not know the state of the other action, and he cannot be relieved on that account, provided he was not deceived, and the precise state of it might have been ascertained by due inquiry Mutual Security Ins. Co. v. Drummond, 3 Code R. 143. Where a number of plaintiffs commence as many actions against the same defendants, and stipulate that they will abide the event of one of the actions, held, that the plaintiff being successful in the action tried, a reference should be ordered to ascertain the amount of the damage sustained by the other plaintiff, and they had only to prove their amount, and that was the only point that the defendants could controvert. Honlahan v. Sackett's Harbor & Saratoga R. R. Co. 24 How. 155. q. Official bond. - Two actions were commenced on an administrator's bond; held, that one only should have been brought, and they were ordered to be consolidated. People v. McDonald, 1 Cow. 189. r. Deposition.-The evidence taken under a commission, issued in a consolidation cause, in which the defendant is joined, may be read in evidence in the principal action. Waterbury v. Delafield, 1 Caines, 513; id. Col. & C. Cas. 324, subd. 7. A demurrer based on the sup. position that a statute has been repealed, is not frivolous. Chauncey v. Lawrence, 15 Abb. 106. See Laws N. Y. 1863, ch. 392. § 168. [144.] (Am'd 1849, 1862.) Allegation not denied; when to be deemed true. Every material allegation of the complaint, not controverted by the answer, as prescribed in section 149; and every material allegation of new matter in the answer, constituting a counterclaim, not controverted by the reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counterclaim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require. I. WHAT ARE MATERIAL ALLEGATIONS. a. General. It has been frequently held | Oechs v. Cook, 3 Duer, 161. Sometimes the that only those allegations are material (in form of the pleading will render a fact matethe sense and meaning of the Code) which rial, which otherwise would not be so. Livthe plaintiff must prove on the trial in orderingston v. Miller, 8 N. Y. (4 Seld.), 289; to maintain his action; it is the truth of these only that is admitted by a failure to answer; unless an allegation may be stricken out as surplusage, it is material. Fry v. Bennett, 5 Sandf. 54; S. C. 1 Code R. N. S. 245; id. 9 N. Y. Leg. Obs. 330; Isham v. Williamson, 7 id. 340; Connoss v. Meir, 2 E. D. Smith, 314; Newman v. Otto, 4 Sandf. 668; S. C. 10 N. Y. Leg. Obs. 14; Harlow v. Hamilton, 6 How. 475; Sands v. St. John, 23 id. 140; S. C. 36 Barb. 628; Oechs v. Cook, 3 Duer, 161; Mayor, etc. of Albany v. Cunliff, 2 N. Y. (2 Comst), 165, 171. b. Libel.-Where facts are pleaded in mitigation of damages in an action for libel, they are not material in the sense of this section of the Code. Newman v. Otto, supra. Nothing is admitted but matters well pleaded. Harlow v. Hamilton, supra. c. Partnership. Where a complaint averred a sale and delivery of goods to defendants under their firm name of A. B. & Co., but did not in express terms state that the firm was made up of the defendants in the action, held, that an omission in the answer to deny that defendants did compose such firm, will not at the trial, preclude them from objecting, first, that the plaintiff has not proved that the goods were sold to both defendants; and second, from offering proof that defendants were not partners; the rule being, that no allegations in a complaint shall be held material within the meaning of this section of the Code, which will not prevent a plaintiff from recovering, if proved to be untrue, or that when denied, he will not be obliged to prove to entitle himself to a verdict. Hatch v. Peet, 23 Barb. 575. d. Written instruments.-This section must be confined to allegations of fact, and cannot refer to an averment of the legal construction or effect of written instruments; and it never can be applied to the intention or meaning of the parties, when they execute a written instrument. . To adopt any other construction, would be to subvert the rules of pleading, as well as the plainest principles of justice. That part of an answer which relates to the meaning of an agreement, must be deemed an immaterial allegation, and as the plaintiff cannot interpose a demurrer, it will be disregarded at the trial. Nor is such an answer ever to be deemed equivalent to an allegation of mistake, or surprise, in the execution of the agreement, so that the defendants will be entitled to have it modified on either of these grounds. Barton v. Sackett, 3 How. 358; S. C. 1 Code R. 96. e. Bond and mortgage.—A complaint set forth the conditions of a bond, and averred that it was secured by a mortgage, "which contained the same conditions as the said bond." An answer that repeated the words of the condition, as they were set forth in the complaint, and averred that it is not contained in the mortgage, is by no means a denial that such was not the substance of the condition of the mortgage. If that issue is to be raised, " the defendant must deny the deeds, or set out the condition verbatim, in order that the court may determine the fact. Dimon v. Dunn, 15 N. Y. (1 Smith), 500; Rev'g S. C. 8 How. 16, sub nom. Dimon v. Bridges. II. ADMISSION BY FAILURE TO ANSWER. a. Cause of action.-Unless the defend- | in such a case, was necessary. Spear v. Hart, ant answers, he admits that all the allegations 3 Rob. 420. set forth in the complaint are true, but does not admit that they constitute a cause of action. Johnson v. Pierce, 7 English (Ark.), 599. | b. Co-defendant.-Where there are codefendants, and any of them do not answer, those who omit to do so shall not be adjudged as having admitted anything set forth in an answer of the defendants who do plead. Woodworth v. Bellows, 4 How. 25. c. Contract.-Where the complaint alleged that, on a day named, the parties to the action entered into an agreement, which was signed by the defendant, setting forth its terms, and the answer admitted that the defendant signed and executed the contract as alleged in the complaint, held, that no proof of a contract, III. ADMISSION Where a demurrer remains on the record, the facts set forth in the pleading to which it is interposed, are admitted by it, as well for the purpose of evidence upon the trial of the issue to which the pleading demurred to, relates, as for the purpose of the argument. Cutler v. Wright, 22 Ñ. Y. (8 Smith), 472, 475. Facts that are relevant, and well plead IV. ADMISSION BY a. Counterclaim.-If the pleading sets up facts as a counterclaim they may be taken as true, if they are neither demurred or replied to, and the defendant will be entitled to relief thereon. Lawrence v. Bank of the Republic, 3 Rob. 142. This case was reversed on other grounds. 35 N. Y. (8 Tiff.), 320; S. C. 31 How. 502. Where there has been a conversion of personal property, which is set up as a counterclaim and damages alleged, and the defendant does not interpose a reply, the amount of damage alleged is not thereby admitted. McKenzie v. Farrell, 4 Bosw. 193; Stuart v. Binsse, 10 id. 436. Where a pleading sets forth a demand against a party, that contains no expressions importing that the defendant | V. EFFECT OF a. Infant.-Where an infant, in pleading, makes an admission which is unfavorable to himself, the court will suppress it. Moore v. Moore, 4 Sandf. Ch. 44; S. C. Aff'd, 5 N. Y. (1 Seld.), 256. b. Plaintiff's right.-A party who admits by his pleading that which establishes the plaintiff's right, cannot deny its existence, nor prove any state of facts inconsistent with such admission. Paige v. Willet, 38 N. Y. (11 Tiff.), 31; id. 5 Trans. App. 27. See, also, Robbins v. Codman, 4 E. D. Smith, 325. To a like effect, see, Tell v. Beyer, 38 N. Y. (11 Tiff.), 162; S. C. 6 Trans. App. 142, sub nom. Till v. Beyer d. Common carrier.-Where it was alleged in the complaint, and not denied (and for that reason admitted in the answer), that defendant received goods as a common carrier, and the contract was entire, and for the whole route, held, that it was no error for the judge to refuse to charge, that over some parts of the route the defendants were not common carriers, but was merely a bailee for hire. Simmons v. Law, 8 Bosw. 213; S. C. Aff'd, 3 Keyes, 217. e. Undertaking.-An allegation that an undertaking was executed, if not denied, implies that the undertaking is executed and delivered, and such is the extent of the admission. Robert v. Good, 2 Trans. App. 103. BY DEMURRER. ed, are admitted by a demurrer, but not conclusions of law. Hall v. Bartlett, 9 Barb. 301; Ford v. Peering, 1 Ves. jr. 72, 78; and cases cited in Story's Pl. 452; Acome v. American Mineral Co. 11 How. 26; Bennion v. Davidson, 1 H. & H. 48; Freeman v. Frank, 10 Abb. 370. FAILURE TO REPLY. claims to recover on it against the plaintiff, such statement will not constitute a counterclaim, but is a defense merely; such an averment does not stand admitted, if not replied to. Bates v. Rosekrans, 37 N. Y. (10 Tiff.), 410; S. C. 4 Abb. N. S. 276; 4 Trans. App. 332. b. Infancy, etc.-Where the defense of infancy is interposed, it may be deemed controverted, and denied (under the provisions of this section) without any reply. Hodges v. Hunt, 22 Barb. 152. The rule is the same with regard to the statute of limitations. Esselstyn v. Weeks, 2 E. D. Smith, 116; S. C. 2 Abb. 272. See, 12 N. Y. (2 Kern.) 635. Also, where usury is interposed. Cutler v. Wright, 22 N. Y. (8 Smith), 472. ADMISSIONS. c. Confession.-Where a party relies upon the confession of his opponent, all that is said at that time, and on the same subject, must be construed together. Garey v. Nicholson, 24 Wend. 350; Kelsey v. Bush, 2 Hill, 440; Dorlon v. Douglass, 6 Barb. 456; Stuart v. Kissam, 2 id. 494. d. Several answers.-Where there are several answers, an admission made in one is not available against the others. Each answer must stand by itself as a distinct defense, and the plaintiff must recover on the whole record. Swift v. Kingsley, 24 Barb. 543; Troy and Rutland Railroad Co. v. Kerr, 17 id. 599 e. Several defenses.-Where there is more than one defense to an action, and new matter is interposed to one of them, the necessity of trying the issues formed directly upon the complaint by the other defenses, is not dispensed with. Vassear v. Livingston, 13 N. Y. (3 Kern.), 256; Aff'g S. C. 4 Duer, 285; Ayres v. Covill, 18 Barb. 264; S. C. 9 How. 573. f. Evidence. An admission that has been expressly abandoned by a pleader, cannot be used in evidence against him. Brown v. Feeter, 7 Wend. 304. It is not competent to read the original pleading in evidence, when it has been amended. Hales v. Pomfret, 1 Dan. Exch. 141. 9. Amended pleading. In the case of an amended pleading, the last, and not the original, is the one before the court; a reference to the original pleading is not enough to falsify the statement of the amended one. The pleader acknowledges, when he amends his pleading, that he was mistaken, and not that he willfully and knowingly made a false statement in the pleading amended. Elizabethport Manufacturing Co. v. Campbell, 13 Abb. 86. Where only a part of an answer is demurred to, the defendant, under the leave to amend, can only amend the defective portion of the answer, and cannot set up new defenses. Fielden v. Carelli, 26 How. 173; S. C. 16 Abb. 289, sub nom. Fielden v. Caselli. Where an answer is held bad on demurrer, facts stated in it cannot be used as admissions of those facts. Firmin v. Crucifix, 5 C. & P. 98. | h. Judgment.-A judgment entered upon a trial, in a case where there is an admission made in the pleadings that shows clearly that there should have been no such judgment entered, would be erroneous. Bridge v. Payson, 5 Sandf. 210, 217; James v. McKernon, 6 Johns. 543, 559, 565; McCosker v. Brady, 1 Barb. Ch. 329; Gould's Pl. 152; McFerran . Taylor, 3 Cranch, 27. i. Special verdict.-A special verdict need not contain facts admitted by the pleadings. These facts, together with those found by the jury, are a proper subject for consideration upon an appeal to the higher court. Barto v. Himrod, 8 N. Y. (4 Seld.), 483. It is only where facts are contested that evidence need be offered to establish them. Hackett v. Richards, 11 N. Y. Leg. Obs. 315; S. C. 3 E. D. Smith, 13; S. C. Rev'd, 13 N. Y. (3 Kern.), 138. "Whatever has been admitted on both sides in the pleading, cannot be contradicted either in the subsequent pleadings, or even in the verdict, for neither party can retract what he has before conceded on the record, and the jury have no authority to find any other facts than such as are put in issue." Gould's Pl. 152; Crosbie v. Leary, 6 Bosw. 313. Where a party, in a pleading, sets forth a fact which his adversary does not deny, such fact must be taken as true, and cannot be denied in that action. Thomas v. Austin, 4 Barb. 273; Johnson v. McIntosh, 31 id. 267, 272. j. Unavailable admission. — Where the demurrer is to one plea or answer, and the admission or averment is found in another, such an admission will not avail the plaintiff on this demurrer. Ayres v. Covill, 18 Barb. 260; Troy and Rutland R. R. Co. v. Kerr, 17 id. 581; Firmin v. Crucifix, 5 Carr. & Payne, 97; Montgomery v. Richardson, id. 247; Smith v. Martin, 9 Mees. & Wels. 304; Edmund v. Groves, 2 id. 642; Harington v. MacMorris, 5 Taunt. 228; 1 Marsh, 33; Robins v. Maidstone, 4 Q. B. R. 811. See, further, as to the English practice, Hutt v. Morrell, 3 Exch. 240; 13 Jur. 215; Knight v. McDouall, 12 Ad. & El. 437; Fearn v. Filica, 7 M. & G. 518; Bonzi v. Stewart, 4 id. 295; Gould v. Oliver, 2 id. 208, 234; Carter v. James, 13 M. & W. 137; Gale v. Lewis, 6 Q. B. 730; 11 Jur. 730. Amendments of course. 173. Amendments by the court. 174. Amendments after demurrer. 175. Suing a party by a fictitious name, when allowed. 176. No error or defect to be regarded, unless it affect substantial rights. § 169. [145.] (Am'd 1849.) Material variances, how provided for. No variance between the allegation in a pleading and the proof shall be leemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just. I. GENERAL a. Amendments.-Where a pleading has been amended, the original is superseded, and the amended pleading takes its place. Sands v. Calkins, 30 How. 2; Walker v. Granite Bank, 1 Abb. N. S. 406; Seneca County Bank v. Garlinghouse, 4 How. 174; Fry v. Bennett, 3 Bosw. 200, (233); S. C. 5 Sandf. 54; 9 N. Y. Leg. Obs. 330; 1 Code R. N. S. 238; Burrall v. Moore, 5 Duer, 654; Dann v. Baker, 12 How. 521; Hales v. Pomfret, 1 Dan. Exch. 141. The effect of amending a pleading by the addition of new parties, is to strike out the issue that has been joined. And it is the right of the defendant, who has already answered, to put in a new answer to the amended complaint. Akin v. Albany Northern R. R. Co. 14 How. 337, 339; Ward v. Dewey, 12 id. 193; Scudder v. Voorhis, 1 Barb. 56. An amendment of a pleading relates back to the commencement of the action, and will sometimes prevent the statute of limitations from attaching to a cause of action not embraced in the original complaint. Ward v. Kalbfleish, 21 How. 283, 285. A pleading can be once amended as of course, but in the case of a demurrer being interposed to an answer, and the pleading is amended by the defendant, and the plaintiff also interposes a demurrer to the amended answer, the defendant cannot, without leave of the court obtained, serve a second amended answer. Sands v. Calkins, 30 How. 1. b. Deceptive words.-Where a person uses words in a deceptive and double sense, with the intention of misleading a party with whom he contracts, he will be bound by them in the sense in which he intended them to be understood. Johnson v. Hathorn, 2 Keyes, 476; S. C. 3 id. 126. See, also, Hoffman v. Etna Fire Ins. Co. 32 N. Y. (5 Tiff.), 405; Barlow v. Scott, 24 N. Y. (10 Smith), 40; Mowatt v. Lord Londesborough, 3 Ell. & Black. 307, 334. It will be no ground for reversing the judgment on appeal, that the husband has been unnecessarily joined with his wife as plaintiff; the court should amend the judgment by striking out the husband's name. Ackley v. Tarbox, 31 N. Y. (4 Tiff.), 564. c. Affidavits.—Where the affidavit is defective in the name of the court, e. g., as in the case of an affidavit, to be used in the court of appeals, when it should be entitled in the II. NOTES UNDER a. Party must be actually misled. Whenever a party seeks to avail himself of the provisions of this section, he must prove, to the satisfaction of the court, that he has NOTES. supreme court, it is defective, and a motion will be denied if founded upon it. Clickman v. Clickman, 1 N. Y. (1 Comst.), 612; S. C. 3 How. 365. This case is disapproved in Bowman v. Sheldon, 5 Sandf. 658, where DUER, J., holds, that if the notice is correctly entitled, the error in the affidavit might be disregarded. It must not be understood that affidavits cannot be amended, but that they cannot be amended in respect to the name of the court. In Spalding v. Spalding, 3 How. 297, 302; S. C. 1 Code R. 64, it is held, that where an action was commenced to compel the delivery of personal property, and the affidavit used was found to be defective, but not as above, the court allowed it to be amended, and this without a motion. See, also, Dows v. Green, 3 How. 377. An affidavit may be entitled in the action to be commenced, in order to obtain an order of arrest. City Bank v. Lumley, 28 How. 397. In Pindar v. Black, 4 How. 95; 2 Code R. 53, HARRIS, J., holds that the entitling an affidavit, which should have no title, is unimportant, and will be disregarded. See § 406, post, and notes. d. Construction.-The provisions of the Revised Statutes (3 R. S. 273), and the matters contained in this chapter, are to be construed together. Brown v. Babcock, 3 How. 305; S. C. 1 Code R. 66. After an action has been commenced, the summons cannot be amended without leave of the court. McCrane v. Moulton, 3 Sandf. 736. e. Settled rule.-It is a well settled rule of law, that a party shall never be prejudiced by any delay occasioned by the court. Wilson v. Henderson, 15 How. 91. And the rule is the same with respect to the neglect, errors or wrongful acts of the officers of the court; in such cases, the court will usually allow an amendment as a matter of course. Neele v. Berryhill, 4 How. 16; Daly v. Matthews, 20 id. 267; S. C. 12 Abb. 403 (n.) See Bascom v. Feazler, 2 How. 16. f. Referees.-A referee has power to allow an amendment under §§ 169, 170 of the Code, provided the variance is immaterial, and the opposite party has not been actually misled to his prejudice. Union Bank v. Mott, 18 How. 506; S. C. 10 Abb. 372. Sce Ford v. Ford, 35 How. 321. THIS SECTION. been misled, and the proof must also show in what respect he has been misled. Catlin v. Gunter, 10 How. 315; S. C. 11 N. Y. (1 Kern.), 368. It is very clear that §§ 169, |