may be filed with the pleadings and shall be deemed a part of the pleading. Within three days after the service of a written demand by either party, the adverse party shall file with the clerk the original or sworn copy of any such contract or other writing specified in such demand. If the paper is not duly filed, the court may order that it be filed and may exclude it from evidence if not filed accordingly.

7. In a proper case a written demand for a bill of particulars of the complaint or counterclaim may be filed with the clerk and served on the opposing party or his attorney. The defendant may file and serve his demand at the time of answering. The plaintiff may file and serve his demand three days after the counterclaim is interposed. In either case a bill of particulars must be filed with the clerk and served within three days after the demand is filed and served and the court upon motion or notice may preclude the party failing to file such bill of particulars from giving evidence of the part or parts of his affirmative allegation of which particulars have not been filed. The court may order a written bill of particulars, with or without verifications, to be filed and served by the plaintiff or by the defendant interposing a counterclaim.

8. For the purpose of raising a question not involving the merits of the action, a party may appear specially by filing with the clerk, on or before the last day for answering, a notice of special appearance stating the particular purpose for which he appears. In that event the case shall be set down for hearing in the manner provided by section ninety-five for bringing a cause on for trial and the party thus appearing need not plead further until directed to do so by the court.

§ 79. Joinder and severance of causes of action. The plaintiff may include in the same complaint any cause of action of which the court has jurisdiction, to the end that all matters of difference between the respective parties may, so far as practicable, be determined in one 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 may make such order and further orders as may be necessary or expedient for the separate disposal thereof.

§ 80.5 Judgment by default. If the defendant fails to answer within the prescribed time, judgment for the plaintiff may be taken by default, without application to the court, in a case in which the complaint or the statement endorsed upon or annexed to the summons sets forth one or more causes of action upon which a judgment by default may thus be entered in an action in the supreme court, subject, however, to the provisions of section twenty-three.

In such a case, if a verified complaint has been filed and served with the summons and the plaintiff does not appear by attorney, the clerk shall, upon plaintiff's request, enter judgment forthwith:

Section 80 is amended by L. 1928, ch. 737, post.

if the plaintiff appears by attorney, the attorney shall prepare the jugment; otherwise the clerk must at plaintiff's request when he does not appear by attorney, ascertain the amount due and enter judgment therefor in the manner prescribed for like cases in the supreme court. In all other cases where the defendant makes a default in pleading, the plaintiff can recover judgment only on application to the court and proof of his cause of action.

§ 81. Offer of judgment. At the time of answering the defendant may file with the clerk and serve on the opposing party or his attorney 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 or more defendants, and the action can be severed, a like offer may be made by one or more of them against whom a separate judgment may be taken. If the plaintiff thereapon, before taking any other proceeding in the action, files with the clerk and serves on the defendant or his attorney a written acceptance of the offer, the clerk may enter 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. Instead of making a written offer a defendant may deposit the amount of his offer with the elerk, if it be a sum of money, with like effect.

§ 82. Complaint. The complaint must state in a plain and concise manner the facts constituting the cause of action.

§ 83. Answer; contents thereof. The answer must contain: 1. 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.

2. A plain and concise statement of any new matter constituting a defense or counterclaim.

3. When the judgment may determine the ultimate rights of two 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 days before trial, or at such other time as the court shall direct upon each defendant to be affected by the determination or upon his attorney in the action.

§ 84. Counterclaim. Except as otherwise provided in this act, a counterclaim and judgment thereon shall be governed by the provisions of law applicable to like cases in the supreme court. § 85. Joinder and severance of counterclaims. There may be included in the counterclaim any claims or cause of action mentioned in section six of this act, against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of one 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 action so joined should not be

tried or disposed of together, the court may order that they 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.

§ 86. Amount recoverable on counterclaim. A counterclaim may be interposed and judgment thereon in favor of the defendant may be rendered for any sum not to exceed three thousand dollars exclusive of interest and costs.

§ 87. Reply to counterclaim. A reply to a counterclaim is not necessary; but the court may order a written reply, verified, or unverified, at any time before judgment. When no reply is filed. the allegations of the counterclaim shall be deemed denied except as otherwise provided in this act.

§ 88. Objections to jurisdiction and to pleadings. 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 filing a notice of special appearance as herein before provided. All other objections which heretofore might have been taken by demurrer may be taken by motion. The notice of motion must specify the grounds thereof and the particular defects or objections upon which the moving party relies.

§ 89. Objections which may be taken by answer. 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.

§ 90. Disposal of objections. 1. 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.

2. 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.

§ 91. Judgment upon the pleadings. If either party is entitled to judgment upon the pleadings, the court may, on motion at any time after issue joined, give judgment accordingly.

§ 92. Signature to instrument; when deemed genuine. A signature to a written instrument which is pleaded shall be taken as admitted unless the party sought to be charged thereby files with the clerk, within eight days after joinder of issue, a specific denial of the genuineness of the signature and a demand that it be proved. Such denial and demand by a defendant may be included in his answer.

§ 93. Construction and amendments of pleadings; judgment and process. 1. The allegations of a pleading must be liberally construed for the purpose of doing substantial justice between the parties.

2. At any stage of the cause the court must allow amendment of any summons, process, mandate, pleading, order or judgment, including a petition, precept, answer and final order in a summary proceeding, if substantial justice will be promoted thereby; and as a condition thereof may impose such terms as may be just.

3. Upon like terms the court may direct that a return made by a marshal or other officer be amended in matter of form, either before or after judgment.

§ 94. Order that issues be tried unnecessary in action against corporation. In an action against a corporation, an order directing that the issues presented by the pleadings be tried shall not be required.

94-a. Service of papers to be filed on opposing attorney. Where both parties appear by attorney, copies of all pleadings, notices, demands and other papers in an action which are required to be filed with the clerk, shall be served by the attorney filing the same upon the attorney for the adverse party, with notice of the date of filing within one day of the date of such filing.

TITLE V

PROCEEDINGS BETWEEN JOINDER OF ISSUE AND TRIAL

Article 1. Bringing cause on for trial; adjournments; subpoenas; attachment against and liability of defaulting wit

ness.

2. Commission to take testimony; depositions; physical examination.*

ARTICLE 1

BRINGING CAUSE ON FOR TRIAL; ADJOURNMENTS; SUBPOENAS; ATTACHMENT AGAINST AND LIABILITY OF DEFAULTING WITNESS

Section. 95. How cause brought on for trial; notice of trial. 96. Adjournment of trial.

$97. Subpoena.

98. Service of subpoena.

99. Attachment against defaulting witness.

100. Liability of defaulting witness.

§ 95. How cause brought on for trial; notice of trial. Upon joinder of issue the clerk shall place the case upon a general calen dar. When either party appears in person, the clerk shall fix a date for trial not less than three nor more than fourteen days after the joinder of issue, and shall immediately notify the parties by mail of such date. Unless otherwise provided by the rules, where both parties appear by attorney either party may serve a

*So in original.

notice on the other fixing a date for trial not less than three nor more than fourteen days after the service of such notice, and shall file such notice, with proof of service thereof, with the clerk at least one day before the date fixed for trial. The clerk shall thereupon place the case on the calendar for trial. When a jury trial is demanded the case shall be placed on the general jury calendar. § 96. Adjournment of trial. The trial of an action may be adjourned:

1. By the court for good cause shown and upon such terms and conditions as the court may deem just.

2. By stipulation of the parties, to be filed with the clerk; or upon request of the plaintiff where the defendant has made default or upon consent of the parties in open court.

$97. Subpoena. A subpoena requiring a witness to appear and testify on the trial of an action or a special proceeding, shall be issued on the demand of either party, by the clerk of the court; but when a party is represented by an attorney, the latter may issue the subpoena and shall subscribe thereto his name and his office and postoffice address. The subpoena may be served anywhere in the county of Onondaga and may require the witness to bring with him any book or paper relating to the merits of the action.

§ 98. Service of subpoena. A subpoena may be served by any person over the age of eighteen years by delivering a copy thereof to the witness personally and by paying or tendering to him a fee of fifty cents for one day's attendance at court, and mileage as provided in section one hundred and seventy-six.

§ 99. Attachment against defaulting witness. 1. Upon satisfactory proof by affidavit or otherwise that a person duly subpoenaed has refused or neglected to obey the subpoena, and upon the oath of the party in whose behalf the person was subpoenaed, or his attorney, that the testimony of such person is material, the court must issue a warrant of attachment directed generally to any marshal, to compel the attendance of such person.

2. Such a warrant of attachment must be executed in the same manner as an order of arrest. The fees of the marshal for serving it must be paid by the person against whom it is issued unless he shows just cause or a reasonable excuse for his omission to attend. in which case the party procuring the warrant must pay them and add them to his costs if he recover any.

§ 100. Liability of defaulting witness. A person duly subpoenaed who neglects or refuses to obey the subpoena, is liable to the party in whose behalf he was subpoenaed for all damages which the party sustains by reason of the neglect or refusal, and fifty dollars in addition thereto, and is subject to any fine or punishment which may be imposed in accordance with the provisions of law governing contempts punishable civilly.