10 N.Y.S. 36 | N.Y. Sup. Ct. | 1890
No particular stress was laid upon the ground of demurrer first above stated, when the case was argued, nor does the brief of the defendant’s counsel disclose sufficient confidence in the correctness of his position in that regard to render it necessary to consider the question at length; and it is perhaps sufficient to say that, if the second and third grounds of demurrer are not well taken, there can be no doubt as to the jurisdiction of the court. The theory of the defendant’s counsel appears to be that the pleader has united a cause of action upon contract with one for tort, and that consequently the complaint is demurrable. It is contended, however, that, even if this were so, the two causes of action arise out of the same transaction, and may therefore be properly united'. It is difficult to see why, under our present practice, this contention is not well founded, (Code Civil Proc. § 484, subd. 9;) and there certainly is abundant authority for, it, (Adams v. Bissell, 28 Barb. 382; Badger v. Benedict, 4 Abb. Pr. 176; Robinson v. Flint, 16 How. Pr. 240; Polley v. Wilkisson, 5 Civil Proc. R. 135.) However, it is not necessary to determine this question, inasmuch as the complaint can bear but one construction, which is that the various causes of action set forth therein are practically the same, and that they are all founded upon an alleged breach of the defendant’s contract as a common carrier. It is true that they are set forth in separate counts, and with allegations which are obviously designed topre.
Nor does the fact that the pleader, in alleging a breach of the contract, has chosen to employ the term “negligence,” necessarily characterize the action as one of tort. It had been frequently held that, where the controlling facts set forth in a complaint constitute a cause of action ex contraotu, the mere presence of an averment of fraud or negligence does not make the action one ex delioto, (Jones v. Walker, 63 N. Y. 612; Ledwich v. McKim, 53 N. Y. 307; Sparman v. Keim, 83 N. Y. 245;) and the form adopted by the pleader in this case appears to be sanctioned by recognized authority in the matter of pleading, (2 Chit. Pl. 356.)
The most serious question in the case, and the one concerning which the authorities differ, is that which arises upon the third ground of demurrer. The complaint alleges that the defendant is a corporation doing business in this state, but omits to aver whether it is a domestic or a foreign corporation, or under the laws of what state, country, or government it was created. In this respect it is clearly defective, (Code Civil Proc. § 1775,) and the defendant insists that, by reason of this defect, “facts sufficient to constitute a cause of action” are not stated. The attention of the court has been directed to several recent adjudications directly in point, which clearly sustain the position of defendant’s counsel,
See Bank v. Rogers, 1 N. Y. Supp. 757; Society v. Anderson, 2 N. Y. Supp. 49; Bank v. Jackson, 4 N. Y. Supp. 433; Oesterreicher v. Publishing Co., 5 N. Y. Supp. 2; Society v. Foote, Id. 336.