12 How. Pr. 326 | N.Y. Sup. Ct. | 1854
The objection to the 11th, 12th and 13th counts, I think, are disposed of by the case of Allen agt. Patterson, (3 Seld. R. 476.) The motion in regard to those counts is denied.
In regard to the 14th count:—A plaintiff may include any number of items in one count or statement of a cause of action. {Code, § 158.) But this right, where the action is for a legal remedy in distinction from equitable relief, I think, should be confined to cases where the items accrued to him in his own right, as distinguished from such as came to him by assignment under the Code, and for which, before the Code, he could not sustain an action in his own name. If he desires to embrace them all in one action, he should state them in separate counts— that is, in classes—so that one count should embrace those items which accrued to him individually, or in his own right, and another, those that have been assigned to him; and, in case he wishes to include causes of action assigned to him by different persons, there should be a count for each of such classes. This is necessary to prevent confusion, and to enable the defendant to answer understandingly the different charges and allegations of the plaintiff.
But the 14th statement of a cause of action in this case may, and I think should, be regarded in the light of an equitable action; and the objection that it contains several causes of action, not separately stated, should not prevail. It contains a case for one accounting in relation to the payment and receiving of moneys, and to other matters and transactions, respecting the purchase by the plaintiff, the intestate, and others, of the Riggs’ farm, and the sale, in parcels, of the whole, or portions of the same. It is, in fact, but one cause of action.
All the allegations embraced in the count under consideration relate to the enterprise of parties referred to of the purchase and sale of this farm, and, I think, should be'disposed of in one accounting. I am satisfied that, under the former practice in the court of chancery, the objection to this cause of action, of multifariousness, would not have been sustained.
But there is another objection to the count in question, which
The plaintiff, to show his right to call the representative of Holley alone to account, alleges that, before and since the death of Holley, See., the plaintiff became and was the owner of all the interests, rights and claims of all the other proprietors in and upon the said bonds and mortgages, and contracts for the payment of moneys for the said lands, and the owner of all accounts of the other said proprietors for money received by Holley on account of the said lands and real estate, and that the moneys due from said Holley, at the time of his death, to all the said proprietors, became, and were, and still are, the property of the plaintiff, &c. Here is no fact alleged showing the plaintiff’s title to the rights and interests of “ other proprietors,” of which he claims to be the owner.
The defendant has the right to be informed how and when the plaintiff became the owner of the rights and interests of the respective proprietors. The plaintiff only alleges that he is the owner, Sec., which is only a legal conclusion. He should state some issuable fact, by which it would appear that he was the owner. Such, for example, as that the interests had been assigned to him.
The other objections of uncertainty, I think, maybe reached by a bill of particulars, or the practice which formerly prevailed in the master’s office of bringing in accounts, and of charges and surcharges, which should still prevail before a referee.
An order may be entered, that the plaintiff make his complaint more certain by amendment, according to the views herein expressed, and that such amendment be served in twenty days after notice of such order; or, in default thereof, that the 14th count, or statement of cause of action, be stricken out. No costs of the motion to be allowed to either party.
