125 Misc. 771 | N.Y. Sup. Ct. | 1925
In the first cause of action a claim is asserted based on what appear to be two independent contracts made respectively on
The liability under each contract is unquestionably distinct, and constitutes a separate cause of action. Separate causes thus united give rise to valid objection. (Egan & Co. v. Butterworth, 66 App. Div. 480.)
In connection with the first cause of action it is further urged that claims for “ extras ” are improperly joined. In a cause of action to recover moneys claimed to be due under a written building contract, such as the one in suit, it is not necessarily improper to include a claim for “ extras ” performed under the very contract. (McIntyre v. Second Avenue Railroad Company, 1 Law Bull. 17.) As to the first cause of action, therefore, the plaintiff will be required merely to separate the causes of action based on the given contracts, so as to set forth a separate cause on each contract.
As to the second cause of action, it is sought to strike out the allegations of the 1st paragraph, which reads as follows: “ Plaintiff repeats the allegations as to the parties herein, and the occupations thereof, as alleged in the first cause of action.”
While this may properly be criticised as inartistic, it is quite apparent that the pleader intended simply to repeat the allegations of the first cause of action only in so far as they relate to the incorporation of the plaintiff, the copartnership of the defendants and the occupation of the parties. But as similar attack is directed against this sort of allegation in both the third and fourth causes of action, which is perfectly well justified and which will obviously necessitate the redrafting of the pleading in question, this might be corrected too. It is entirely clear that allegations contained in a separately numbered paragraph of one cause of action may be incorporated as a whole in another cause by mere reference and without the necessity of repeating them, but in this blanket form to attempt it is manifestly improper. This must be so, as the defendants are well entitled to be so placed as to enable them to plead or move as they may be advised with regard to each separately numbered cause or allegation.
Confusion also arises from the allegations in the fourth and fifth causes of action, and complaint is justly registered in respect