270 F. 332 | S.D.N.Y. | 1920
This is a motion to compel' plaintiff to elect on which of the five causes of action set up in the complaint it will proceed, and .for further relief.
Under section 24, subd. 20, of the Judicial Code (Comp. St. § 991 [20]), such a suit may also apparently be brought in this court against the _United States. United States v. Emery, B. T. Realty Co., 237 U. S. 28, 35 Sup. Ct. 499, 59 U. Ed. 825. For the reason that no action may be brought against the collector as such, I think all causes of .action should be dismissed as against him in his official capacity.
The first cause of action is for money received and collected by the defendant to plaintiff’s use. The allegations are very scanty, and do not set forth the grounds or color of title under which the moneys were ■collected. They seem to me to proceed with far less particularity than the forms for any of the common counts would indicate to be customary. This will be apparent from reading Chitty, or any of the old books on pleading, which in the recitals of the “whereas clause” were accustomed to set forth the nature of the consideration, or the relation between the parties which gave rise to the receipt of moneys for the use of the plaintiff.
The second cause of action contains mere conclusions, namely, that the defendant was indebted to the plaintiff for money paid by the plaintiff to the use of the defendant. This, again, is subject to the same difficulty as the first cause of action.
The third cause of action goes even farther than the first and second in failing to plead any facts, and simply sets forth that the defendant was indebted.
The fourth cause of action, I am inclined to think, does set forth an account stated, although in an unusual and inartificial form.
As there are no allegations of diverse citizenship, and it appears affirmatively that the amount of $3,000 is not involved, this court can have no jurisdiction of such controversy, and the first four causes of action should be dismissed.
I may add that I can see no reason for any cause of action that •does not recite the ultimate facts showing that penalties were being
Settle order on notice.