8 How. Pr. 177 | N.Y. Sup. Ct. | 1852
A complaint is to contain a statement of the facts which constitute a single cause of action (Benedict agt. Seymour, 6 How. Pr. R. 298). This is the general rule. The 167th section of the Code makes certain exceptions to this general rule. It authorizes two or more causes of action, in certain specified cases, and under certain restrictions, to be united in the same complaint. Where a complaint contains matter not relating to the cause of action upon which the plaintiff relies, it may be struck out as irrelevant or redundant Where the matters thus stated constitute a distinct cause of action, so that, in fact, two distinct causes of action are set forth, the defendant may demur, upon the ground that several causes of action have been improperly united, unless the pleader has brought his case within the provisions of the 167th section. Prominent among the conditions which this section imposes upon the party who would unite several causes of action in the same complaint is, the requirement that such causes of action shall be separately stated. Where this requirement is disregarded, the plaintiff can not defend his complaint against a demurrer founded upon the improper union of several causes of action, by showing that they were such as, by the provisions of the 167th section, he was authorized to unite in the same complaint. That this is so, has, I think, been clearly shown by Mr. Justice Willard, in Durkee agt. The Saratoga and Washington Rail Road Co. (4 How. Pr.
As I understand the complaints in these actions, they each contain three distinct grounds upon which the plaintiffs rely to sustain a recovery; first, the erection of a continuous line of embankment between the plaintiff’s farm and the channel of the river, whereby they are deprived of the use and navigation of the river, and in consequence of which they have sustained damage, &c.; then, the omission of the defendants to construct such a bridge as is necessary to provide for the free passage of vessels from the river into the bay, whereby the plaintiffs have also sustained damage, and lastly, the omission of the defendants to construct any passes or roads across their rail road, for the passage of persons,'cattle, carriages and teams, for the purpose of enabling the plaintiffs to farm and manage their lands. I do not now propose to inquire whether all or any of these causes of action, if sustained by proof, would entitle the plaintiffs to recover. I am now regarding the allegations solely in reference to the character and sufficiency of the complaint as a pleading. Assuming that the plaintiffs are right in making these allegations, they should have been set forth as three separate causes of action. Each involves a legal question distinct from the others. Neither one is dependent upon either of the others. The defendants had the right to have these distinct and independent grounds of action so stated as that by answer or demurrer, as they should be advised, they could present the appropriate defence to each. Now, the three causes of action are so mingled and connected together that the defendants have no alternative but to answer the whole, or demur to the whole. Had they been presented as distinct causes of action, it is not unlikely that the defendants might have demurred to the first and last, on the ground that a sufficient cause of action was not stated. I say, to the first, because I think the question which that involves is settled by the very able opinion of Mr. Justice Barctjlo, in Gould vs. The same defend
I do not think the causes of action are such that they might not lawfully be united in the same action. Assuming that the plaintiffs can maintain an action for each of the several grievances of which they complain, I think they may all be considered as having arisen out of “ the same transaction;” or at least, as so far “ connected with the same subject of action,” as to authorize their being united in the same suit, under the first subdivision of the 167th section. I am inclined to think they all belong to the third class also; but whether they do or not, it is not material to determine, for it is enough that they all belong to any one of the classes specified.
The demurrers in these cases, instead of being such pleadings as are contemplated by the Code, contain the defendants’ argument in support of their objections. Five grounds of demurrer, or rather, Jive points are stated; some of which are again subdivided into several subordinate points; the whole occupying ten folios. The first two points, with their subdivisions, are the same stated in the report of Gould vs. The Hudson River Rail Road Co., above cited. So great elaborateness was, to say the least, quite unnecessary
Six grounds of demurrer are specified in the Code. It is enough to authorize a demurrer that any one of these objections appears upon the face of the complaint. But the demurrer must not be general. It must specify distinctly upon which of the
In Purdy agt. Carpenter (6 How. Pr. R. 361), it was held that a demurrer, like those which had been sustained in the cases above cited, did not satisfy the requirements of the Code. This
In the premises stated by Mr. Justice Basculo, in the learned, opinion to which I have referred, and in much of his argument I fully concur; but I can not agree that his conclusions are sustained by his premises or his argument. I. agree that there is now no such thing as a general demurrer. I agr.ee, too, that the. Code now requires, what was required by the rules of 1847, that, the party demurring should “ briefly but plainly specify the objections upon which he intends to rely on the argument.” But, I can not doubt that this requirement is satisfied by “ distinctly specifying ” upon which of the several grounds of demurrer enumerated in the 144th section the party relies. When he thus distinctly specifies one or more of such grounds, he precludes himself from taking, upon the argument of the demurrer, any other objection. This, I suppose, was what was intended by the 145th section, The party, to whose pleading the demurrer is taken, is thus apprised of the precise ground of objection.
It is not to be forgotten that a demurrer is only appropriate when the ground of objection appears on the face of the pleading. Can it be, that a party demurring upon the ground that it appears by the plaintiff’s own showing that the court has no jurisdiction, of the person of the defendant, must go farther and present reasons and arguments to maintain his objection? If it appear that the plaintiff is a feme covert, suing without a next friend,, is it not enough to say, as the ground of demurrer, “ that the-plaintiff has not legal, capacity to sue?” And so, when, passing;
If I am right in these .views, it will be seen that “ section 145 does not become a dead.letter by tolerating this mode of demurring.” Both sections have their appropriate office. The 144th .section declares what are.valid grounds of demurrer. The 145th ¡requires the party demurring distinctly to specify upon which, ■«of these grounds he means to rely; thus, negatively, disclaiming ¡all other grounds of objection.
I might have disposed of this ease without entering upon this discussion, but I hav.e thought it might be worth while to make these suggestions, in the hope that they might tend to the early settlement of a question which, as the decisions now stand, can but perplex and embarrass the profession as well as judges. Nor will I deny that I have been actuated by the further hope, that the question would be so settled as to save this branch of our-present system.of pleadings from the difficulty and uncertainty : which, it seems to me, would inevitably attend the establishment-of the views presented in the very able opinion to which I have • referred. For, if those views are to prevail, what pleader can know, until .he learns the peculiarities of the judge who isto.decide upon the question, whether or not he.has “pointed:out with sufficient'distinctness the grounds of his demurrer? •'