14 How. Pr. 91 | N.Y. Sup. Ct. | 1856
The complaint in hand is a very different thing from that described in the 142d section of the Code. The plaintiffs allege that the defendant owes them a balance of account amounting to $656.80. For this sum, with interest, they claim that they are entitled to judgment. They ask.for nothing more. And yet the plaintiffs have, in their complaint, stated that they have two distinct causes of action against the defendant for precisely the same amount of goods sold and delivered, and subject to precisely the same credit. If there is any substantial difference between the two causes of action as stated, I have failed to perceive it. The proof which would sustain one would be equally applicable to the other. It is clearly a case of “ unnecessary repetition.”
It is said that this ought not to be assumed without proof, and that, as there is no affidavit to show that the plaintiff has, in fact, but a single cause of action, the motion should, for that reason, be denied. But where it is apparent, as I think it is in this case, that several counts in the same complaint are really for the same thing, no affidavit is required. Nothing that could be stated by the defendant in an affidavit could present the fact upon which he relies more distinctly than it already appears upon the face of the complaint. Suppose he should
I know that, in Lackey agt. Vanderbilt, (10 How. 155,) Mr. Justice Strong has said that the objection that several causes of action stated in the complaint are one, can be made to appear only upon an affidavit. But, in that very case, it appears that the affidavit upon which the motion was founded was insufficient to show that the causes of action stated in the several counts were the same. The motion, however, was founded upon the complaint, as well as the affidavit, and the learned judge says that, upon examining that pleading, he was satisfied that the causes of action stated in the Second, third, fourth and fifth counts were embraced in the. first. It was because the motion was founded upon what appeared upon the face of the complaint that it prevailed.
It appears from an affidavit, read in opposition to the motion, that the defendant has failed in business, and made an assignment of his property, preferring other debts to that of the plaintiffs. There is some reason, perhaps, for believing that no defence to the action is contemplated. But, however this may be, I am not at liberty, by denying this motion, to sanction such a departure from the established rules of pleading as is presented in this complaint.
An order must, therefore, be entered, setting aside the complaint, but with liberty to the plaintiffs to serve a new comnlaint within twenty days after notice of this decision. The defendant is also entitled to the costs of the morion.