115 N. Y. 520. 38 Hun, 301. 17 Abb. N. C. 425. 46 N.Y. Super. Ct. (J. & S.) 216. 17 Abb. N. C. 391. 17 Abb. N. C. 391. 17 Hun, 543. 17 Abb, N. 100. N. Y. 55. § 463. A defendant in an action involving his right, title, or interest, in or to real or personal property, may petition the court, in which the action is pending, for leave to defend the action as a poor person, and to have an attorney and counsel assigned to conduct his defence. § 464. The petition must contain the same matters, re specting the ability of the petitioner, required to be contained in a petition for leave to prosecute as a poor person; and it must be supported by a similar certificate, relating to the defence. § 465. The provisions of this article, relating to the order. to be made upon an application for leave to prosecute as a poor person, and the proceedings subsequent thereto, apply te the order and subsequent proceedings, upon an application for leave to defend as a poor person. § 466. An order, made as prescribed in this article, does not authorize the petitioner to take or maintain an appeal, as a poor person; but where an appeal is taken by the adverse party, the order is applicable, in favor of the petitioner, as respondent in the appeal. § 467. Where costs are awarded in favor of a person who has been admitted to prosecute or defend as a poor per son, as prescribed in this article, they must be paid over to his attorney, when collected from the adverse party, and dis tributed among the attorney and counsel assigned to the poor person, as the court directs. ARTICLE FOURTH. INFANT PLAINTIFFS AND DEFENDANTS. 2468. Right of infant to bring action. 469. Guardian for infant plain- 470. Application therefor. 472. Guardian, how appointed. 473. Guardian for absent in fant defendant. 2474. Guardian not to receive property until security given. 475. Security. 476. Last two sections not to apply to general guard ian. 477. Liability of defendant's guardian for costs. § 468. Where an infant has a right of action, he is e titled to maintain an action thereon; and the same shall not be deferred or delayed, on account of his infancy. § 469. [Am'd 1891.] Before a summons is issued in the name of an infant plainti a competent and responsible person must be appointed to appear his guardian for the purpose of the action, who shall be responsi for the costs thereof, except where such infant prosecutes as a pot person as provided for under section four hundred and fifty-nine this act, in which case security for costs shall not be required. 470. The guardian must be appointed upon the applica tion of the infant, if he is of the age of fourteen years, upwards; or, if he is under that age, upon the application of his general or testamentary guardian, if he has one, or of a relative or friend. If the application is made by a relative of friend, notice thereof must be given to his general or testa mentary guardian, if he has one; or, if he has none, to the person with whom the infant resides. § 471. [Am'd 1879.] An infant defendant must also a pear by guardian, who must be a competent and responsib person, appointed upon the application of the infant, if he f the age of fourteen years, or upwards, and applies within $ 473. [Am'd 1877, 1889.] Where an infant defendant re- 131 N. Y. 568. des out of the State or resides within the State and is tempoarily absent therefrom, the court may, in its discretion, make n order designating a person to be his guardian ad litem, unless e, or some one in his behalf, procures such a guardian to be ppointed, as prescribed in the last two sections, within a pecified time after service of a copy of the order. The court hust give special directions in the order, respecting the serice thereof, which may be upon the infant. The summons ay be served by delivering a copy to the guardian so apointed, with like effect as where a summons is served withut the State upon an adult defendant, pursuant to an order or that purpose, granted as prescribed in section four hunred and thirty-eight of this act; except that the time to apear or answer is twenty days after the service of the sumons, exclusive of the day of service. § 474. Except in a case where it is otherwise specially rescribed by law, a gnardian, appointed for an infant, as rescribed in this article, shall not be permitted to receive oney or property of the infant, other than costs and exenses allowed to the guardian by the court, until he has iven sufficient security, approved by a judge of the court, or county judge, to account for and apply the same, under the irection of the court. $475. The security must be a bond to the infant, in such enalty as the judge directs, not less than twice the sum, or he value of the property, to be received, executed by the uardian and at least two sureties approved by the judge, nd filed in the office of the clerk. The infant, or any other arty to the action, may afterwards apply for an order, diecting a new bond to be given, with an increased penalty'; or he court may so direct, of its own motion. 17 Abb. N. § 476. The last two sections do not apply to the general 33 Hun, 419. 119 N.Y. 348. 136 N.Y. 655. 31 Hun, 301. 13 Daly, 302. 26 Hun, 107. 13 Daly, 302. 31 Hun, 301; 33 Id. 419. 51 N.Y. Super. Ct. (J. & S.) 88. 13 N. Y.State Rep. 543. 128 N. Y. 45. N. Y. 45. § 488. [Am'd 1877.] The defendant may demur to the complaint, where one or more of the following objections thereto appear upon the face thereof. 1. That the court has not jurisdiction of the person of the defendant. 2. That the court has not jurisdiction of the subject of the action. 3. That the plaintiff has not legal capacity to sue. 4. That there is another action pending between the same parties, for the same cause. 5. That there is a misjoinder of parties plaintiff. 6. That there is a defect of parties, plaintiff or defendant. 7. That causes of action have been improperly united. 8. That the complaint does not state facts sufficient to cou stitute a cause of action. § 489. [Repealed 1877.] § 490. [Am'd 1877.] The demurrer must distinctly specify the objections to the complaint; otherwise it may be disregarded. An objection, taken under subdivision first, second, fourth or eighth of section four hundred and eighty-eight of this act, may be stated in the language of the subdivision; an objection, taken under either of the other subdivisions, must point out specifically the particular defect relied upon. § 491. [Repealed. 1877.] § 492. The defendant may demur to the whole complaint, or to one or more separate causes of action, stated therein. In the latter case, he may answer the causes of action not demurred to. § 493. The defendant may also demur to the reply, or to a separate traverse to, or avoidance of, a defence or counterclaim, contained in the reply, on the ground that it is insufficient in law, upon the face thereof. S494. The plaintiff may demur to a counterclaim or a defence consisting of new matter, contained in the answer, on the ground that it is insufficient in law, upon the face thereof. § 495. [Am'd 1877.] The plaintiff may also demur to a counterclaim, upon which the defendant demands an affirmative judgment, where one or more of the following objections thereto, appear on the face of the counterclaim : 1. That the court has not jurisdiction of the subject thereof. 2. That the defendant has not legal capacity to recover upon the same. 3. That there is another action pending between the same parties, for the same cause. 4. That the counterclaim is not of the character specified in section five hundred and one of this act. 5. That the counterclaim does not state facts sufficient to constitute a cause of action. § 496. [Am'd 1877.] A demurrer, taken under the last section, must distinctly specify the objections to the counterclaim; otherwise it may be disregarded. The mode of specifying the objections is the same, as where a demurrer is taken to a complaint. § 497. [Am'd 1877.] Upon the decision of a demurrer, either at a general or special term, or in the court of appeals, the court may, in its discretion, allow the party in fault to plead anew or amend, upon such terms as are just. If a demurrer to a complaint is allowed, because two or more causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated. § 498. [Am'd 1877.] Where any of the matters enumerated in section four hundred and eighty-eight of this act as grounds of demurrer, do not appear on the face of the complaint, the objection may be taken by answer. $499. If such an objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it; except the objection to the jurisdiction of the court, or the objection that the complaint does not state facts sufficient to constitute a cause of action. 98 N. Y. 239; 108 Id. 445; 119 Id. 348; 122 Id. 631. § 500. [Am'd 1877.] The answer of the defendant must contain: 110 N. Y. 150. 124 Id. 533. 1. A general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief. 2. A statement of any new matter constituting a defence or counterclaim, in ordinary and concise language, without repetition. § 501. [Am'd 1877.] The counterclaim, specified in the last section, must tend, in some way, to diminish or defeat the plaintiff's recovery, and must be one of the following causes of action against the plaintiff, or, in a proper case, against the person whom he represents, and in favor of the > defendant, or of one or more defendants, between whom and the plaintiff a separate judgment may be had in the action: 23 Abb. N. C. 60. 128 Id. 58. 132 N. Y. 472. 34 Hun, 602. 119 N.Y. 348. 128 N. Y. 58. 136 N. Y. 55. 26 Hun, 107; 31 Id. 596. 50 N. Y. Super Ct. (J. & S.) 198. 136 N.Y. 655. 33 Hun, 143. 11 N.Y.State Rep. 85. 1. A cause of action, arising out of the contract or transact- 49 Hun, 360. ion set forth in the complaint as the foundation of the plain tiff's claim, or connected with the subject of the action. 2. In: an action on contract,, any other cause of, action on contract, existing at the commencement, of, the action. A § 502. JAm'd 1877.] But the counterclaim, specified in subdivision second of the last section, is subject to the following rules: I. If the action is founded upon a contract, which has been assigned by the party thereto, other than a negotiable promissory note or bill of exchange, a demand, existing against the party thereto, or an assignee of the contract, at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him. 2. If the action is upon a negotiable promissory note or bill of exchange, which has been assigned to the plaintiff after it became due, a demand, existing against a person who assigned or transferred it, after it became due, must be allowed as a counterclaim, to the amount of the plaintiff's demand, if it might have been so allowed against the assignor, while the note or bill belonged to him. 3. If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff, who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents, or for whose benefit the action is brought, as will satisfy the plaintiff's demand, must be allowed as a counterclaim, if it might have been so allowed in an action brought by the person beneficially interested. § 503 [Am'd 1877.] Where a counterclaim is established, which equals the plaintiff's demand, the judgment must be in favor of the defendant. Where it is less than the plaintiff's demand, the plaintiff must have judgment for the residue only. Where it exceeds the plaintiff's demand, the defendant must have judgment for the excess,' or so much thereof as is due from the plaintiff. Where part of the excess is not due from the plaintiff, the judgment does not prejudice the defendant's right to recover, from another person, so much thereof as the judgment does not cancel. 504. In a case not specified in the last section, where a counterclaim is established, which entitles the defendant to an affirmative judgment, demanded in the answer, judgment must be rendered for the defendant accordingly. § 505. In an action against an executor or an administrator, or other person sued in a representative capacity, the defendant may set forth, as a counterclaim, a demand belonging to the decedent, or other person whom he represents, where the person so represented would have been entitled to set forth the same, in an action against him. § 506. In an action brought by an executor or administrator, in his representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the defendant as a counterclaim, as if the action had been brought by the decedent in his life-time; and, if a balance is found to be due to the defendant, judgments must be rendered therefor against the plaintiff, in his representative capacity. Execution can be issued upon such a judgment, only a case where i could be issued upon a judgment, in an action against the executor or administrator. |