32 Barb. 217 | N.Y. Sup. Ct. | 1860
By the Court,
The two counts in the complaint are upon the same written agreement or promissory note of the defendant. The action is brought by the plaintiff as receiver of the Utica Insurance Company, an insolvent and dissolved corporation. The first count is upon the note of the defendant, given to the company, alleging it to have been executed and delivered to the company as and for a part of its capital stock; and the second count is upon the same note, alleging it to have been given for the premium upon a policy of insurance and as an agreement to contribute ratably to the losses and expenses of the company. Each count contains the requisite allegations to sustain an action upon the note. If the question were res nova, I should be inclined to greater liberality in the construction of the code in tolerating “withoutunnecessary repetition” statements of the same cause of action in different forms, or different causes of action arising out of the same transaction, than the report
Section 142 of the code of procedure has received a construction in several reported cases, to which reference will be made hereafter. With the decisions actually made in those cases I have no fault to find. But the grounds upon which some of the decisions have been placed, have led to the conclusion that the code absolutely prohibits more than one count upon the same instrument or transaction; that it forbids the party under all circumstances from providing against the contingencies and uncertainties incident to all litigation, by asserting different claims arising out of the same transaction when he can have but a single good cause of action. The code, in another section, provides that several causes of action may be united when they all arise out of the same transaction, or transactions connected with the same subject of action. (Gode, § 167.) But this, read in connection with § 142, is claimed to authorize only the joinder of such causes
Allen, Mullin and Morgan, Justices.]