14 How. Pr. 184 | N.Y. Sup. Ct. | 1856
Lead Opinion
—The only important question in this case is, whether the complaint is demurrable for the reason that it contains two causes of action upon two promissory notes, which causes of action are numbered, but not separately stated, as they should be according to Rule 86 of the Supreme Court (Code, § 167, subd. 7).
Several causes of action are improperly united in a complaint when they differ in character (Moore a. Smith, 10 How. Pr. R., 361). To illustrate;—a cause of action upon a promissory note and one for an assault and battery cannot be united in the same complaint. Such a complaint is demurrable (Code, § 144, subd. 5). But several causes of action upon several promissory notes may be united in the same complaint (Code, § 166, subd. 2). They are not “ improperly united,” simply be cause they are not separately stated. This is shown by section 172 of the Code, which provides that “ if the demurrer be allowed for the cause mentioned in the fifth subdivision of section one hundred and forty-four, the court may in its discretion and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.” There can be no necessity for dividing an action upon two promissory notes and making two actions of it.
Section 144 of the Code prescribes the causes for which the defendant may demur to the complaint; and it is not made a ground of demurrer that several causes of action in the com
The correct practice was adopted in Benedict a. Seymour (6 How. Pr. R., 298), where defences were stricken out of an answer upon a motion for that purpose, because they were not separately stated according to the last clause of section 150 of the Code. (See Clark v. Farley, 3 Duer, 645.) This practice was sanctioned in Waller a. Raskan (12 How. Pr. R., 28). The case of Landau a. Levy (1 Abbotts’ Pr. R., 376), does not necessarily conflict with the case of Benedict a. Seymour, or with that of Waller a. Raskan, before cited.
I am compelled to differ with the learned judges who delivered the opinions in the following cases :—Getty a. The Hudson River Railroad Company (8 How. Pr. R., 177); Van Namee a. Peeble (9 Ib., 198); Durkee a. The Saratoga and Washington Railroad Company (4 Ib., 226); Pike a. Van Homer (5 lb., 171); Accome a. The American Mineral Company (11 Ib., 27). These are all special term decisions: we can therefore overrule them without creating much serious confusion in the practice, and I
Present, Shankland, Gray, Mason, and Balcom, JJ.
To the cases here cited should now he added Badger a. Benedict, Ante, 176 ' decided since the above opinion was delivered.
Concurrence Opinion
Gray, J., delivered an opinion sustaining the same conclusion.
Dissenting Opinion
Judgment of the special term affirmed with costs.
