Schlieder v. Dexter

99 N.Y.S. 1000 | N.Y. App. Div. | 1906

Patterson, J.:

This is an appeal from an interlocutory judgment overruling the demurrer of the defendant Wells to the complaint herein. The grounds of the demurrer are: That the plaintiff has not legal capacity to sue, in that as general guardian he has no right or power to sue and that suit can only be brought by a guardian ad litem; that the plaintiff has not legal capacity to sue as general guardian upon an instrument in writing, which is set forth in the complaint; that plaintiff has not legal capacity to sue as general guardian, because there is no sufficient allegation of his appointment or qualification as such ; that several causes of action have been improperly united, one being a money demand on contract, the second a claim in tort to recover for conversion of personal property, and the third a claim in tort to recover for a conspiracy of conversion of personal property ; that each of the several causes of action specifically pleaded as such does not state facts sufficient to constitute a cause of action.

Concerning the grounds which relate to the plaintiff’s legal capacity to sue as general guardian, rye think the demurrer was properly overruled,, in view of the peculiar facts and circumstances set forth in the complaint. It is undoubtedly the rule that where a cause of action ■ exists directly in favor of an infant, the action should be brought through a guardian ad litem; but there are cases, and this we think is one of them, in which the general guardian may sue as the trustee of an express trust (Thomas v. Bennett, 56 Barb. 197; Bayer v. Phillips, 10 N. Y. Civ. Proc. Rep. 227), and the allegation of the plaintiff’s appointment as general guardian as made in the complaint is sufficient, for it is therein stated that he was duly appointed such by an order of the Surrogate’s Court of Ulster county; and that means that he was appointed according to law. (Baxter v. Lancaster, 58 App. Div. 382; Rockwell v. Merwin, 45 N. Y. 166.) But the complaint as drawn purports to set forth three separate and distinct causes of action, although it is obvious from the facts stated that there is but a single cause of action, if any, existing in favor of the plaintiff. It is the rule that each cause of action should contain in itself a statement of facts which would entitle the plaintiff to recover upon 'it (Wallace v. Jones, 68 App. Div. 192), although one separate cause of action may be made effective by incorporating in it by general averment, without literal repetition, the facts set forth in another or preceding cause of action.

The complaint before us is very inartificially drawn and is a conspicuous example of the worst kind of pleading. Three separate causes of action do not exist in favor of the plaintiff, but taking -all the facts as they are recited in the three so-called causes of action combined, a prima facie case is made out. Those allegations, in effect, are that the plaintiff, suing as general guardian and trustee of an express trust, had in his hands the sum of §2,100, which he gave into the possession of the defendants, receiving from them a promissory note in the form of a stock collateral security note with a pledge of bonds as collateral; that the defendants knew that the money was trust money and that the bonds were delivered to the plaintiff as collateral security for the return of the money; that at the special instance and request of the defendant Dexter, acting for himself' and the other defendants, including this demurrant, the plaintiff delivered the bonds to Dexter, acting for the other defendants, to sell for the account and benefit of the plaintiff and the defendants for a sum not less than §2,100; that in delivering the bonds to the defendants the plaintiff was acting under the advice of the defendant Dexter, who was his attorney and counsel; that Dexter gave that advice in pursuance of a plan or conspiracy on the part of himself and the other defendants to obtain possession of the bonds from the plaintiff; that the money has not been repaid to the plaintiff the note being long past due, and the plaintiff has demanded the return of the bonds from the defendants ; that the same have not been returned, but have been converted by the defendants to their own use and benefit, or that they are now held by them in trust; that the plaintiff has demanded from the defendants a statement or information as to whether or not the bonds have been sold, and if so, the amount of the proceeds thereof, and has been unable to obtain from them any statement or information, and the plaintiff demands judgment that the sum of §2,100 and interest be adjudged a trust fund in the hands of the defendants and that they be required to account therefor, or if the bonds have been sold, to account to the plaintiff for the proceeds thereof or judgment against each of them for the sum of §2,100 and interest and for such other or further relief as the plaintiff may be entitled to against the defendants jointly or severally.

These facts set forth in the complaint are sufficient to state a cause of action against the defendants at least for an accounting. That they are inartificially stated and separated into various causes of action does not make the whole complaint demurrable on the ground that causes of action are improperly united therein. (Jackson v. Brown, 74 Hun, 25; Downey v. Turner, 28 App. Div. 491.) This question was before us in the case of Waite v. Sabel (44 App. Div. 634), affirming an interlocutory judgment overruling a demurrer upon the opinion of the court at Special Term, in which it is said that if separate causes of action or defenses are stated in paragraphs separately numbered it is sufficient, but that the statement of facts in separately numbered paragraphs or alleged by mistake as separate causes of action does not vitiate the pleading, if but a single cause of action or defense is in fact pleaded. Notwithstanding the very objectionable way in which this complaint is drawn we think that one cause of action exists and that it may be spelled out of the pleading.

The interlocutory judgment should be affirmed, with costs, with leave to the defendant to withdraw the demurrer and to answer on payment of costs in this court and in the court below.

O’Brien, P. J., Laughlin and Clarke, JJ., concurred; McLaughlin, J., concurred in result.

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed. »