Harsen v. Bayaud, 5 Duer 656

Harsen v. Bayaud

5 Duer 656 | The Superior Court of New York City | 1856

Bosworth, J.,

held, that several causes of action are not im properly united, within the meaning of those words, as used in sub. 5 of section 144 of the Code, if they all belong to one of the *657classes mentioned in section 167, and affect all the parties to the action, and do not require separate places of trial, although they may not be separately stated. The requirement of sub. 7 of section 167, that they “be separately stated,” is not a fact or condition that must exist, to prevent a demurrer being taken on the mere ground that they are improperly united. That provision relates solely to the form of the complaint. If the complaint be defective in that particular, the remedy is a motion that it be made more definite and certain, so as to show what part of it is relied upon as stating facts constituting a distinct cause of action.

The words “improperly united,” as used in sub. 5 of section 144, refer to the nature of the causes of action united, and not to the form of stating the facts which constitute them. They are properly united, however unartificially they may be stated, if they all belong to a specified class, and affect all the parties to the action, and do not require separate places of trial. Judgment must be ordered for the plaintiff, with liberty to the defendant to answer, in ten days, on payment of the costs of the demurrer.