not throw around such a plea the protection of the Constitution. The Constitution provides (Art. 1, §2): "The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever." It secures the right to a jury trial of the issues of fact in those cases where it had been theretofore used. This did not deprive the court of the power to determine whether there was an issue of fact to be tried; but if the court determined there was such an issue, it must be tried by a jury. A false denial interposed for the purpose of delay did not create such an issue, any more than a false affirmative defense.1

The power is given to the court, but it is needless to say that it must be exercised with care and not extended beyond its just limits. The court is not authorized to try the issue, but is to determine whether there is an issue to be tried. If there is, it must be tried by a jury. Plaintiff's affidavit must state such facts as are necessary to establish a good cause of action. It will not be sufficient if it verifies only a portion of the cause of action, leaving out some essential part thereof. It must state the amount claimed, and his belief that there is no defense to the action. The defendant must show that he has a bona fide defense to the action, one which he may be able to establish. It must be a plausible ground of defense, something fairly arguable and of a substantial character. This he must show by affidavits or other proof. He cannot shelter himself behind general or specific denials, or denials of knowledge or information sufficient to form a belief. He must show that his denial or his defense is not false and sham, but interposed in good faith and not for delay. If he shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to defend, this court will not review the order, as we consider that no substantial right of the plaintiff has been violated.3

We, therefore, dismiss this appeal without costs.

CLARKE, P. J., DOWLING, SMITH and GREENBAUM, JJ., concur. Appeal dismissed, without costs.*

1 The constitutionality of the New York procedure under Rule 113 as originally promulgated was sustained by the Court of Appeals in General Investment Co. v. Interborough Rapid Transit Co., 235 N. Y. 133 (1923).

2 See Barrett v. Jacobs, 255 N. Y. 520 (1931).

3 As to appellate review of orders denying summary judgment, compare Hongkong & Shanghai Banking Corp. v. Lazard-Goodchaux Co., 205 App. Div. 174 (N. Y. 1923) [aff'd without opinion, 239 N. Y. 610 (1925)], with Fisher v. Sun Underwriters Ins. Co., 55 R. I. 175 (1935). See Note, 103 A. L. R. 1106 (1936).

Compare Lee v. Graubard, 205 App. Div. 344 (N. Y. 1923), where no counter-affidavits were filed by the defendant, and summary judgment was granted. See also, to the same effect, Pusatere v. New Amsterdam Casualty Co., 116 N. J. L. 359 (1936).

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 56. SUMMARY JUDGMENT.

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the [pleading in answer thereto has been served],1 move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.

(b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that [, except as to the amount of damages,] there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.2

(d) Case Not Fully Adjudicated on Motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters.

1 Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 64, omits the matter placed in square brackets in the text and substitutes "expiration of 20 days from the commencement of the action."

2 Second Preliminary Draft, supra, 64, omits the matter placed in square brackets in the text and adds the following sentence at the end of Rule 56(c): "A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." The purpose of this change is stated to be, id. 65, to resolve doubts expressed in Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620 (1944).

stated therein. Sworn or cerified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.

(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions. to be taken or discovery to be had or may make such other order as is just.

(g) Affidavits Made in Bad Faith. Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.1

SECTION 3

PLEAS IN BAR

est common erudition, que le defendant en son respons et [en] barre, doiet ou traverser, ou confesser et avoider. . . .' Mynours v. Turke, Dyer (Tottell ed. 1592) 66, pl. 14 (Exchequer, 1550).

STEPHEN, PLEADING (Williston ed. 1895) *150*151.

RULE I.

AFTER THE DECLARATION, THE PARTIES MUST AT EACH

STAGE

DEMUR, OR PLEAD BY WAY OF TRAVERSE, OR BY WAY OF CONFESSION AND AVOIDANCE.

1. The party must demur, or plead. One or other of these courses he is bound to take (while he means to maintain his action or defence) until issue be tendered. If he does neither, but confesses the right of the adverse party, or says nothing, the court immediately gives judgment for his adversary; in the former case, as by confession, in the latter, by non pros. or nil dicit.

1 As to the validity and scope of Rule 56, see Sartor v. Arkansas Natural Gas Corp., 321 U. S. 620 (1944).

2. If the party pleads, it must either be by way of traverse, or of confession and avoidance. If his pleading amount to neither of these modes of answer, it is open to demurrer on that ground.

THE GENERAL ISSUE.1

At common law a plea by way of traverse might be either a common traverse, denying some specific allegation of fact made by the opposite party; or it might be a special traverse, in which the party first affirmatively alleged facts inconsistent with the allegations made by the opposite party, constituting an argumentative denial of an allegation of the opposite party, followed by a direct denial, usually introduced by the words, "absque hoc"; or it might be the general issue.

Before forms of action were abolished, it was essential that a student of the law should understand the scope of the general issue in each of the various forms of action. Where a defendant in his plea made a specific denial of an allegation in the plaintiff's declaration, the plea was open to demurrer if the allegation would have been put in issue if the defendant had pleaded the general issue. If the defendant pleaded the general issue, the plaintiff had the burden of proving at the trial such of the allegations in his declaration, and only such allegations, as were put in issue by the plea; and the defendant could introduce evidence with respect to these allegations, but was not permitted to introduce evidence as to any defense not within the scope of the issue, whether such defense were negative or affirmative.

Long before the opening of the nineteenth century, the law of pleading had become very artificial and very complex. An ordinary lawyer could hardly hope to draft pleadings which would avoid the many pitfalls into which an unwary pleader might fall. Accordingly, it was customary for the lawyer in charge of a case to employ another lawyer who was expert in the law of pleading, a special pleader. The courts, sympathizing to a limited extent with the difficulties of the lawyers in drafting proper pleadings, gradually enlarged the scope of the general issue, making it unnecessary in many cases for the defendant's lawyer to make specific denials or specific allegations of fact. By pleading the general issue, a pleading which was simple in form and stated in language fixed by precedent, he could make various negative and affirmative defenses at the trial. However, although the scope of the general issue in some forms of action, as for example in the action of general assumpsit, was very broad, the situation was not altogether satisfactory either to the plaintiff or to the defendant. The plaintiff could not tell before the case went

1 See 9 Holdsworth, History of English Law (2d ed. 1938) 319–327.

to trial what defenses the defendant really intended to rely upon, and the principal purpose of requiring pleadings, namely to give notice to each party of the position which the other party was taking, was largely defeated. Moreover, some defenses could not be shown under the general issue, and the defendant by pleading the general issue might be precluded from setting up at the trial a defense upon which he had intended to rely, while if he interposed a different plea, he might have his pleading thrown out on demurrer on the ground that his defense fell within the scope of the general issue. Accordingly, the Commissioners appointed in 1829 to inquire into the practice and proceedings of the superior courts of common law in England recommended that the scope of the general issue should be made more narrow, and in pursuance of a statute enacted by Parliament in 18321 and rules of court made in pursuance thereof, known as the General Rules of Hilary Term, 1834 the scope of the general issue was restricted. The Rules, however, instead of improving the situation, created confusion worse confounded. While they made the system of pleading "more uniform and consistent", and produced greater certainty as to the issues in each case, the result of extending the requirement of special pleas was to extend to all actions "the technical and formal defects of the system" of special pleading. This system was simplified somewhat by the Common Law Procedure Act of 1852,5 and the plea of the general issue was abolished by the Supreme Court of Judicature (Amendment) Act of 1875.6

2

13 & 4 Will. IV, c. 42, § 1. This statute authorized the judges of the superior courts of common law to make rules altering the mode of pleading in those courts, and provided that such rules when made should be laid before Parliament.

2 The Hilary Rules are given in full in Stephen, Pleading (Williston ed. 1895) *lvi-*lix. They narrowed the scope of the general issue in assumpsit, covenant, debt, detinue, case and trespass. See Reppy, "The Hilary Rules and Their Effect," 6 N. Y. U. L. Rev. 95 (1929).

3 First Report of His Majesty's 'Commissioners for Inquiring into the Process, Practice, and System of Pleading in the Superior Courts of Common Law (1851) 20.

Ibid. See Whittier, "Notice Pleading," 31 Harv. L. Rev. 501, 507 (1918): "Under the common-law system the matter was bad enough with a pleading question decided in every sixth case. But under the Hilary Rules it was worse. Every fourth case decided a question on the pleadings. Pleading ran riot."

5 15 & 16 Vict. c. 76. See especially § 64, abolishing the requirement of express colour [vide infra, p. 234, n. 5]; § 65, eliminating the necessity for special traverses; and § 76, providing as follows: "A Defendant may either traverse generally such of the Facts contained in the Declaration as might have been denied by One Plea, or may select and traverse separately any material Allegation in the Declaration, although it might have been included in a general Traverse."

6 38 & 39 Vict. c. 77, § 16, and First Schedule (Rules of Court) Order XIX, Rule 20. See also the American statutes and rules of court at pp. 232–233, infra.