Lackey v. Vanderbilt, 10 How. Pr. 155

Lackey v. Vanderbilt

10 How. Pr. 155 | N.Y. Sup. Ct. | 1854

S. B. Strong, Justice.

It appears from the affidavit of the plaintiff’s counsel and a stipulation annexed to it, that the time for the defendant to answer the complaint, and to make such application as he should he advised, was extended to the 19th July last. Notice of the motion to correct the complaint was served on that day. That motion was embraced in the terms of the stipulation, and was therefore in season equally as if the original period for answering had terminated on the same day. The order of Judge Clerke, extending the time to answer, was made on the same day, and was, at all events, valid until the first Tuesday of August. It appears from a memorandum on the defendant’s papers, and indeed it seemed to be admitted by the plaintiffs counsel on the argument, that on the 31st of July a mutual arrangement was made that the motion mentioned in the defendant’s notice should be adjourned until the special term, when it was heard. Under these circumstances I am satisfied that it was the intention of both parties to save to the defendant the right to make the motion which I have indicated at the term when it was argued. There can be no doubt, at any rate, that the defendant’s counsel thought that his present motion was included in the terms used in the stipulation ; and if there had been reason to suppose that he had misinterpreted it, I should be inclined to relax the rule, which it is competent for the court to do in all cases except where the time is specifically fixed by statute.

*160The motion is, to require the plaintiff to strike out four of the first five counts in the complaint, on the ground that the five are for the same identical cause of action, and no other; and that, therefore, four of those counts must be- redundant. The defendant’s attorney swears in the affidavit annexed to his notice, “that he has defended several similar actions which were instituted by the plaintiff’s attorney, and which have been tried; and that from his general acquaintance with the nature of those actions and the investigations he had made as to the circumstances thereof, and from the general character of the testimony given on the trial of such actions, he believes that the first five counts are based upon, and refer to, one and the same transaction, and are but different modes of stating the sameand he further states as a reason why the affidavit had not been made by the defendant, that he is unable to attend to his ordinary business on account of ill health, and is absent from the city. What is said as to the identity of the subject matter of the first five counts, is stated from inference and belief, but in the absence of any denial or counter-statement by, or in behalf of the plaintiff, the inference must be deemed to be correct and the belief well founded. The affidavit in support of the motion is not very explicit as to the identity of the causes of action specified in the different counts. It merely states that they are based upon, and refer to one and the same transaction. The Code (§ 167) indicates, and no doubt truly, that several causes of action may arise out of one transaction. The affidavit does not go far enough. But the notice states that the motion would be founded upon that and the complaint. On examining that pleading, I am satisfied that the causes of action in the second, third, fourth and fifth counts are embraced in the first count; and my impression, if it needed any support, would be fortified by the admission contained in the elaborate points submitted to me by the ingenious counsel for the plaintiff. That learned counsel argued very ably, in favor of his main position, that it is competent for the plaintiff now, as it was before the passage of the Code, to set forth the same cause of action in distinct counts, varying the *161allegations so as to meet the proof which was deemed essential in a complicated transaction. The requisition of the Code in this respect is, (§ 142,) that the complaint must contain a plain and concise statement of the facts constituting a cause of action. A “fact” is defined to be “a thing done, reality, not supposition, action, deed.” (Walker’s Dictionary.) All of these definitions call, and some of them emphatically, for the truth. The first edition of the Code contained the same requisition, that the complaint should set forth a statement of the facts constituting the cause of action; and it also required that it should be verified, (Code of 1848, §§ 120 and 133;) of course that statute called for a true statement; and the same phraseology used in a subsequent statute must have the same interpretation. Indeed the principal, and I am constrained to say, almost, if not the only beneficial object of the legislature in adopting the new Code of Procedure, was to abolish the use of fictitious allegations in our written pleadings, which had a tendency to mislead the parties, and embarrass those to whom the administration of the law was confided. Now, as there can be but one substantially true statement of a single cause of action, the practice of setting it forth in different counts is necessarily abolished. A merely formal variation is unnecessary, while a substantial one would involve a contradiction, and one must be false. The pleader, who drew the complaint in this action, in effect recognized the new rule, as each count after the first commences with an allegation that it is for a further, separate, and distinct cause of action. That too furnishes an answer to the point taken by the plaintiff’s counsel, that the objection to the multiplicity of the counts should have been taken, and could only be available by demurrer. A demurrer admits the allegations contained in the pleading to which it is interposed, and would, of course, in this case, admit that each count is for a separate and distinct cause of action. The objection that the causes of action are one, can be made to appear only upon an affidavit, and can be available only on motion.

The former practice of allowing a plaintiff to set forth the same cause of action in different ways in several counts so as *162to meet the proof was, undoubtedly, advantageous to the plaintiff. But it often seriously embarrassed the defendant in the preparation of his pleadings to meet, he knew not what, and in procuring his evidence; and sometimes subjected him to great injustice in having a suppositious claim established against him. The benefit to one was more than balanced by the evil to the other party. The old rule was, and was probably designed to be, the most favorable to the plaintiff, while the new rule does equal justice to both parties. The plaintiff generally does, or at least should understand his own case. If he states it truly, he can prove it, if at all, as he sets it forth, should his witnesses testify truly; and if he can support it only by evidence varying from the truth, he ought to fail. I refer only to variations in substance. Differences as to inconsequent matters should not obstruct or prevent a recovery. An adequate remedy exists in the liberal powers conferred upon our courts to allow pleadings to be amended so as to conform to the proof.

The 2d, 3d, 4th, and 5th counts must be struck out of the complaint, unless the plaintiff shall elect within twenty days to retain one of them in lieu of the first count, which must in that event be struck out; and the plaintiff must be at liberty within the same time to amend the count retained by him, should he elect to retain either of his counts, or, should he prefer it, to substitute a single new count in the place of his first five counts. The defendant must have the same time after service of the amended complaint to answer it; and the plaintiff must pay ten dollars costs of the motion.