Lead Opinion
On the 19th day of February, 1903, the plaintiff’s intestate, Elizabeth J. Logan, and the defendant’s testator, John Whitley, entered into a contract in contemplation of marriage, which provided that the former, if she survived the, latter, should accept from his estate the sum of $10,000 in lien of dower and of her distributive share of the personal property, and that the latter should hold all the real estate which he then owned, or might thereafter acquire, free from any claim of dower, inchoate or otherwise; in consideration whereof the latter agreed that the former should be
While in form the complaint purports to state two causes of action, the plaintiff has but one. Instead of stating the one cause of action under separate counts, the pleader has in form alleged separate causes of action. The cause of action is on contract, not in tort. The plaintiff seeks to recover on the contract the sum of $10,000, first, on the theory that the contingency upon which it was to be paid happened; second, on the theory that the happening of .the contingency was prevented by the wrongful act of the defendant’s testator. There is no such inconsistency between the - two grounds of recovery as precludes their being joined in one complaint. The Code provisions respecting pleading were designed to prevent, not create, pitfalls, and to enable the parties to settle their differences in one suit. Where there are several distinct grounds upon which the plaintiff may recover on but a single cause of action, it is proper to allege under different counts each ground of liability, and the plaintiff cannot be compelled to take the hazard of an election. (Velie v. Newark City Ins. Co., 65 How. Pr. 1; Blank v. Hartshorn, 37 Hun, 101; Seymour v. Warren, 71 App. Div. 421;
It is contended that the demurrer to the so-called second cause of action was improperly overruled for the reason that sufficient facts were not stated to constitute a cause of action. It is argued that the $10,000 was not to be paid except on the contingency that tiie wife survived the husband; that it was intended to be in lieu of dower, and hence can only be recovered in case dower could have been recovered; that the defendants are not chargeable with the wrong of their testator; and that the plaintiff represents collateral heirs who are not entitled to enforce the contract.
While the plaintiff’s intestate agreed to accept said sum of $10,000 in lieu of dower, that was not the sole consideration for the promise of the defendants’ testator to pay her that sum. Her inchoate dower in the real estate owned by her husband at the time of the marriage or subsequently acquired by him was released. The marriage as well as the other mutual covenants formed part of the consideration. The contract was not wholly executory; so far as the plaintiff’s intestate was concerned it had been wholly executed and she had become entitled to the sum of $10,000 upon the contingency that she survived her husband. That claim was in the nature of a debt against his estate. (Matter of Baker, 83 App. Div. 530; affd., 178 N. Y. 575.)
A party to a contract cannot set up the failure.of a condition caused by his own fault. (Gallagher v. Nichols, 60 N. Y. 438; Risley v. Smith, 64 id. 576.) In this case the happening of the contingency upon which the payment was to be made was prevented
The plaintiff is not a volunteer, and the cases holding that collateral relatives, who do not come within the object of the consideration of a marriage settlement, cannot maintain an action to compel specific performance of it have no application. The plaintiff does not claim as a beneficiary under the contract, but as the representative of her intestate.
The judgment should be affirmed, with costs.
Woodward, Hooker and High, JJ., concurred; Gaynor, J. concurred in separate opinion.
Concurrence Opinion
Causes of action have to e consistent with each other to be united in the "same complaint (Code Civ. Proc. § 484). The test of consistency is whether a'recovery may be had on each. • If, on the contrary, one cause, if recovered on, defeats the other or others, or, if valid, shows the other or others to be void, they are inconsistent (Bliss Code Pl. § 122). The two causes here alleged are obviously inconsistent; they cannot both be recovered on; recovery on one would defeat the other. But although the pleader has expressly pleaded a first and a second cause of action, the fact is there is but one on the facts alleged, and only one should have been in form pleaded. The cause is breach of a contract to pay $10,000. Whichever way the money came due'on the contract, viz., whether by the wife surviving the husband, or by the act of the husband in killing the wife and thereby preventing the money coming due by her surviving him, it remains the fact that there is only one cause of action, viz., for breach of the contract obligation to pay the money after it came due. The plaintiff could have alleged in one cause of action (1) that the husband willfully and wrongfully killed the wife
The objection that if the wife did not survive the husband, the cause of action was never in her, and therefore cannot have passed to her administrator, is only specious. It often happens that a cause of action accrues to an executor or administrator on a contract owned by his decedent which had not accrued to the decedent. The contract passes to the executor or administrator, and the cause of action on it may only accrue by the fact of the decedent’s death, or afterwards. ■
Interlocutory judgment affirmed, with costs.