124 N.Y.S. 396 | N.Y. App. Div. | 1910
The plaintiff appeals from an order requiring him to separately state and number his causes of action, and to make his complaint more, definite and certain. "
The plaintiff was an assistant engineer in a large office-building known as No. 2 Rector street. He was working in the elevator pit inspecting machinery and performing other duties when a heavy piece of iron or trench plate fell upon him, producing severe injuries The defendant Thompson-Starrett Company was engaged at the time in doing certain work upon the premises. The plaintiff now sues: (1) The Thompson-Starrett Company, the contractors. (2) The United States Express Realty Company, which, as he alleges, owned and controlled the building, and (3) the United States
He alleges that at the time the accident happened the building was under the management, operation or control of the defendants or some of them • that lie,, the plaintiff, was in the employ of the defendants or some of them ; that the duties he was performing at the time of the accident were such as he had been directed to do by the defendants or some of them, and that the defendants or some of them were guilty of negligence in permitting the iron plate to fall. It is apparent that the plaintiff does not charge concurrent negligence upon the defendants. All that he alleges is that some one of the defendants was negligent, although he does not specify which one. His evident expectation is to find out on the trial which defendant had been negligent, taking a judgment against that one, and suffering a nonsuit as to the others. If the complaint states a cause of action against any one (and we do not say it does) it certainly attempts to set up three distinct causes of action against three separate defendants. The plaintiff’s error in attempting to sustain this form of complaint arises from the fact that he seems to consider that the happening of the accident constitutes the gravamen of his cause of action. In this he is mistaken. The gravamen lies in the negligence which led to the accident, and to state a good cause of action the negligence must be attributed to the particular defendant said to have been guilty thereof. It is unnecessary to couple with an order to separately state and number causes of action a direction that the complaint be made more definite and certain. The separation of the causes will involve the service of an amended complaint, and the uncertainties and indefiniteness of the present complaint may not. appear in the amended complaint. If they do a new motion can be made.
The order appealed from is, therefore, reversed except in so far as it directs the causes of action to be separately stated and numbered, with ten dollars costs and disbursements to the respondents.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.
Order reversed, except in so far as it directs the causes of action to be separately stated and numbered, with ten dollars costs and disbursements to respondents. Settle order on notice.
