to setting forth the instrument, according to its legal effect.(2)

Co. Proc., part of 162, am'd. (1) Woodruff v. Leonard, T. & C. 208, s. c., 1 Hun, 632; Peyser v. McCormack. 7 id. 300; Butchers' Bank v. Jacobson, 24 How. 204; 15 Abb. 220; Ranney. Smith, 6 How. 420; Chappell v. Bissell, 10 id. 274: Adams v. Sherrill, 14 id. 297; Marshall v. Rockwood, 12 id. 452; Keteltas v. Myers, 19 N. Y. 231; Gay v. Paine, 1 Duer, 602; Griswold v. Laverty, 3 id. 690; Alden v. Blooming. Hale, 1 id. 601; Cottrell v. Conklin, 4 id. 52; Woodbury v. Sackrider, 2 Abb. 404; Andrews v. Astor Bank, 2 Duer, 629; Price u. McClave, 6 id. 544; Lord v. Cheesebrough, 4 Sandf. 696. (2) Conkling v. Gandail, 1 Keyes, 231.*

$535. Pleadings in libel and slander. It is no necessary, in an action for libel or slander, to state, in the complaint, any extrinsic fact, for the purpose of showing the application to the plaintiff, of the defamatory matter; but the plaintiff may state, generally, that it was published or spoken concerning him; and, if that allegation is controverted, the plaintiff must establish it on the trial.(1) In such an action, the defendant may prove mitigating circumstances, notwithstanding that he has pleaded or attempted to prove a justifica tion.(2)

Id., 164. Last sentence substituted for id., 165. (1) Bassil v. Elmore, 65 Barb. 627; More v. Bennett, 48 N. Y. 472. (2) Kelly v. Taintor, 48 How, 270; Bennett v. Matthews, 64 Barb. 410; Spooner v. Keeler, 51 N. Y. 527; Bush v. Prosser, 11 id. 347; Bisbey v. Shaw. 11 id. 67; Hunt v. Bennett, 4 E. D. Smith, 547. See 30 Alb. L. J. 516.

§ 536. [Amended, 1877.] Pleading mitigating cir cumstances in action for a wrong. In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts, not amounting to a total defence, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defences to the entire cause of action. A defendant, in default for want of an answer, may, apon a reference or inquiry to ascertain the amount f the plaintiff's damages, prove facts of that descrip

ew.

See Dolevin v. Wilder, 34 How. 488; Foland v. Johnson, il 735; Moore v. Devoy, 37 How. 18; Harter v. Crill, 33 Barb. 283. dons for breach of promise to marry, see Miller v. Hayes, 11 Am. 134; Palmer v. Andrews, 7 Wend. 142.

637. [Amended, 1879.] Frivolous pleadings how posed of. If a demurrer, answer or reply is frivol. the party prejudiced thereby, upon a previous to the adverse party, of not less than five days, *See 29 Eng. R. 313.

may apply to the court or to a judge of the court for judgment thereupon, and judgment may be given accordingly.(1) If the application is denied, an appeal cannot be taken from the determination, and the denial of the application does not prejudice any of the subsequent proceedings of either party. Costs, as upon a motion, may be awarded upon an application pursuant to this section. (2)

(1) Co. Proc., 247. Strong v. Sproul, 53 N. Y. 497; Mutual Gasight Co. Mayor, 49 How. 227; Fettretch r. McKay, 47 N. Y. 426; Wayland v. Tysen 45 id. 281: Thompson v. Erie Ry. Co., id. 281; Claflin v. Jaroslauski, 64 Baro. 463; Commonwealth Bank v. Pryor, 11 Aob. N. S. 227; Samuels. Evening Mail Ass., 52 N. Y. 625; Perkins v. Squier, 1 T. & C. 620; Faber v. D'Utassey, 11 Abb. N. S. 399; Kay v. Whittaker, 44 N. Y. 565; Griffin v. Todd, 48 How. 15; Excelsior Bank v. Campbell, 4 T. & C. 549; Fellows v. Muller, 38 N. Y. Supr. 127; Kain . Dickel, 46 How. 208; Rice . Ehele, 55 N. Y. 518; Munger . Shannon, 61 id. 251; and see notes to Wait's and Voorhies' Codes. (2) New.

§ 538. Sham defences to be stricken out. A sham answer or a sham defence may be stricken out by the court, upon motion, and upon such terms as the court deems just.

Id., 152, am'd. People v. McOmber, 18 N. Y. 320; Wayland v. Tysen 45 id. 281; Thompson v. Erie Railway Co., id. 471; Claflin v. Jaroslauski. 64 Barb. 463; Coinmonwealth Bank v. Pryor, 11 Abb. N. S. 227; and see cases in note to prior section.

$539. Material variances; how provided for. 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 ac tion or defence, upon 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, upon such terms as it deems just.

Id., 169. Thomas v. Austin, 4 Barb. 272; N. Y. Cent. Ins. Co. v. Nat. Prot. Ins. Co., 20 id. 473; Crosbie v. Leary, 6 Bosw. 312; Johnson . McIntosh, 31 Barb. 267; Paige v. Willett, 38 N. Y. 28; Wright v. Delafield, 25 id. 266; Fowler v. Martin, 1 T. & C. 377; Lass v. Wetmore, 1 Sweeney, 209; Knapp v, Roche, 37 N. Y. Supr. 395; Hauck v. Craighead, 4 Hun, 561; Sussdorff v. Schmidt, 55 N. Y. 319; Boynton v. Boynton, 41 How. 380; Clayes v. Hooker, 4 Hun, 231; Beard v. Yates, 5 T. & C. 76; DeGraw v. Elmore, 50 N. Y. 1; Beach v. Eager, 3 Hun, 610; Ross v Mather, 51 N. Y. 108. See notes to Wait's and Voorhies' Codes

§ 540. Immaterial variances; how provided for. Where the variance is not material, as prescribed in the last section, the court may direct the fact to be found

according to the evidence, or may order an immediate amendment, without costs.

Co. Proc., 170.

$641. What to be deemed a failure of proof.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 sections, but a failure of proof.

Id., 171. Kelsey v. Western, 2 N. Y. 500; Fay v. Grimstead, 10 Barb. 321; Catlin v. Gunter, 11 N. Y. 368; Gasher v. Adams, 28 Barb. 441; Manice v. Brady, 15 Abb. 173; Beard v. Yates, 5 T. & C. 76; s. c., 2 Hun, 466; Walter v. Bennett, 16 N. Y. 250; Lewis v. Mott, 36 id. 395; Degraw v. Elmore, 50 id. 1; Ledwich v. McKim, 53 id. 307; Connaughty v. Nichols, 42 id. 83; Ross v. Mather, 51 id. 108; Dudley v. Scranton, 57 id. 424.

542. Amendments of course. Within twenty days after a pleading, or the answer or demurrer thereto, is served, or at any time before the period for answering it expires, the pleading may be once amended by the party, of course, without costs, and without prejudice to the proceedings already had.(1) But if it is made to appear to the court, that the pleading was amended for the purpose of delay, and that the adverse party will thereby lose the benefit of a term, for which the cause is or may be noticed, the amended pleading may be stricken out, or the pleading may be restored to its original form, and such terms imposed as the court deems just.(2)

Id., part of 172, remodelled. (1) Toomey_v. Andrews, 48 How. 332; Robertson v. Bannett, 1 Abb. N. C. 476; Brown v. Leigh, 49 N. Y. 78; s. c., 12 Abb. N. S. 193; Stilwell v. Kelly, 37 N. Y. Supr. 417; Muller v. Earle, id. 388; and see note to Voorhies' Code, 172. (2) Allen v. Compton, 8 How. 251; Vanderbilt v. Bleecker, 4 Abb. 289; Thomp son v. Minford, 11 How. 273; Griffen v. Cohen, 8 id. 452; Spencer v. Tooker, 12 Abb. 353; Snyder v. White, 6 How. 321; George v. McAvoy, 1d. 200; Kelly v. Downing, 42 N. Y. 71.

§ 543. Amended pleading to be served; answer thereto. Where a pleading is amended, as prescribed In the last section, a copy thereof must be served upon

attorney for the adverse party. A failure to demur or answer the amended pleading, within twenty ys thereafter, has the same effect as a like failure te mur to, or answer the original pleading.

part of 172, and of 146. Low v. Graydon, 14 Abb. 444 . Woods, 2 Sandf. 652.

544. [Amended, 1877.] Supplemental pleadings, -Upon the application of either party, the court may, and, in a proper case, must, upon such terms as are just, permit him to make a supplemental complaint, answer or reply, alleging material facts which occurred after his former pleading, or of which he was ignorant when it was made; including the judgment or decree of a competent court, rendered after the commencement of the action, determining the matters in controversy, or a part thereof. The party may apply for leave to make a supplemental pleading, either in addition to, or in place of, the former pleading. In the former event. If the application is granted, a provisional remedy, or other proceeding already taken in the action, is not affected by the supplemental pleading; but the right of the adverse party to have it vacated or set aside, depends upon the case presented by the original and supplemental pleadings.

Co. Proc., 177, am'd. Tiffany v. Bowerman, 5 T. & C. 169; s. c., 2 Hun, 643; Loher v. Fargo, 1 id. 312; Stewart v. James, 38 N. Y. Supr. 866; Muller v. Earle, 37 id. 388; Bostwick v. Menck, 4 Daly, 68; Lyon v. Isett, 42 How. 155; s. c., 11 Abb. N. S. 353; 34 N. Y. Supr. 31; Medbury t. Swan, 46 N. Y. 200; Holyoke v. Adams, 59 id. 233; Haddow v. Lundy, 1d. 320: Beach v. Reynolds, 53 1d. 1-7; Corbin v. Knapp, 5 Hun, 197; Robinson v. Brisbane, 7 id. 180; Wilson v. Lawrence, 8 id. 593.

§ 545. [Amended, 1877.] Motion to strike out irrel●vant, etc., matter. - Irrelevant,(1) redundant,(2) or scandalous(3) matter, contained in a pleading, may be stricken out, upon the motion of a person aggrieved thereby. Where scandalous matter is thus stricken out, the at torney whose name is subscribed to the pleading may be directed to pay the costs of the motion, and his fail. ure to pay them may be punished as a contempt of the court. (4)

Id., 160, am'd. (1) Fettretch v. McKay, 47 N. Y. 426; Briggs v. Ber gen, 23 id. 162; Thompson v. Erie Railway. Co., 45 id. 468; Strong v. Sproul, 53 id. 497; Town v. N. Y., etc., R. R. Co., 8 Hun, 361; Hollen beck v. Clow, 9 id. 292; Smith v. Trafton, 3 Rob. 709. (2) Bowman v. Sheldon, 5 Sandf. 660; Brockleman v. Brandt, 10 Abb. 141; Post v. Harris, 12 1d. 446; Benedict v. Seymour, 6 How. 303. (3) Mussina v. Clark, 17 Abb. 188; Opdyke v. Marble, 18 id. 266, 375; Bowman v. Sheldon, 5 Sandf. 660; Carpenter v. West, 5 How. 53; and see notes to Voorhies' and Walt's Codes. (4) McVey v. Cantwell, 8 Hun, 522.

§ 546. [Amended, 1877.] Indefinite or uncertain allegations. Where one or more denials or allegations, contained in a pleading, are so indefinite or uncertain that the precise meaning or application thereof is not

apparent, the court may require the pleading to be made definite and certain, by amendment.

Co. Proc., part of 160, am'd. Tilton v. Beecher, 59 N. Y. 176; Fettretch . McKay, 47 1d. 426: Hale v. Omaha Nat. Bank, 49 1d. 626 Jones . Norwood, 37 N. Y. Supr. 276. See, elaborate note to Voorbies Oode, 160.

8547. [Repealed in 1877.]