| N.Y. App. Div. | Jan 11, 1907
The plaintiff set forth an action, based upon the defendants’ nég^ligence, alleging various grounds of negligence, including common-law grounds and those arising under the Employers’ Liability Act (Laws of .1902, chap. 600), and set forth,'as it is claimed, that One John Gahler was in the defendants’, employ operating a dirt train, for the purpose of gaining an admission of this fact in the pleadings, thus saving the trouble of proving a fact which was involved in the case. The defendants moved for an order striking out as “ redundant and irrelevant ” this allegation in inference to" Gahler and the other allegations involved in a common-law action, and the order appealed from strikes out these allegations unless the plaintiff shall serve an amended complaint separately stating his common-law-action and his action under the Employers’ Liability Act. xThe plaintiff appeals.-
The plaintiff clearly has but one cause of action, and that is for the damages he has sustained through the actionable hegligénce of the defendants, if such negligence exists; whether the facts bring his case within the Employers’ Liability Act or whether he must rely upon his common-law rights, must depend upon the’ evidence which he is able to produce upon the- trial, and. we.ean see no good reasdn for a refinement of the pleadings such as is directed by the order appealed from. If the plaintiff establishes his cause of action under the. Employers’ Liability Act, the common-law allegations are mere surplusage, just as a portion of them-would be if 'various common-law grounds were asserted and only one of them proved.
The authority of section 545 of the Code of Civil Procedure to strike out “irrelevant, redundant or scandalous matter” has not been understood to cover a case-of this character, so far as we have been able.to discover. On the contrary,-it was said in considering .this provision of the Code
It is true that in Mulligan v. Erie Railroad Co. (99 A.D. 499" court="N.Y. App. Div." date_filed="1904-07-01" href="https://app.midpage.ai/document/mulligan-v-erie-railroad-5195737?utm_source=webapp" opinion_id="5195737">99 App. Div. 499) this court refused to compel a plaintiff to stand upon his common-law rights, and permitted him to amend his complaint by setting up his common-law action and his action under the Employers’ Liability Act in separate counts, hut that was not the real question under consideration there, the point involved being that the plaintiff had elected to stand upon his common-law rights, and the court held that he was entitled to either remedy, and strongly intimated that his second count, under the Employers’ Liability Act, was all that was necessary. The case decided no question involved here, nor do we find that the question has been adjudicated.
We conclude that the matter directed to be struck out properly belongs in the complaint, and that the plaintiff, having but a single cause of action, may not be compelled to plead two causes, but-that' the allegations of negligence which are not admitted or proved may be considered as surplusage, and that the plaintiff has a right to submit his case upon the pleadings as they originally stood.
The order appealed from should be reversed, with costs, and the motion denied, with costs.
Hirsohberg, P. J., Jenks, Rich and Milder, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
Code Proc. § 160, revised in Code Civ. Proc. § 5.45.— [Rep.