218 A.D. 808 | N.Y. App. Div. | 1926
The complaint leaves us in doubt as to the pleader’s intention in respect to plaintiff’s cause or causes of action. Despite its voluminous character there are obvious omissions of various matters wMch may have a bearing upon plaintiff’s rights. How did the letter of credit come to be sent by the City Bank Trust Company to defendant? Did defendant know that plaintiff’s intestate was ignorant of the terms of the letter of credit? Did defendant know what instructions were given by plaintiff’s intestate to the National Bank of Commerce? Was plaintiff’s intestate already obligated to take the sugar? In the absence of allegations on these points, or some of them, it is difficult to understand what duty rested upon defendant as to stppping payment on the draft. Neither is it clear what damage the negligence alleged in paragraph 12 caused plaintiff’s intestate. It might merely have relieved Mm from Ms obligation to the defendant upon the draft. Some of these obscurities may be cleared up by an amended pleading. As to the number of causes of action, we are again uncertain as to the pleader’s intention. The first twelve paragraphs may be taken as intending to allege a cause of action for negligence m the performance of a duty owing by the defendant to plaintiff’s intestate, while the complaint as a whole may be intended to allege one for misrepresentation and fraud. It is even possible that a cause of action for breach of contract is indicated. In any event, an amended pleading should clarify the situation. And we have, therefore, determined to affirm the order wMch requires the service of an amended complaint with causes of action separately numbered if more than one is alleged. This, of course, permits the plaintiff to frame an amended eomplamt with only one cause of action if he so elects. All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ. Order affirmed, with ten dollars costs and disbursements.