42 Barb. 404 | N.Y. Sup. Ct. | 1864
The question is, does the second count of the complaint sufficiently state any cause of action ? I think it does not, and that the demurrer is well taken. It is a fundamental rule in pleading, that where there are separate counts in a complaint, each must disclose a distinct right of action. Chitty says: “ The separate counts are for all purposes as distinct as if they were in separate declarations ; and consequently they must contain all necessary allegations, or the latter must expressly refer to the former.” (1 Chitty’s Plead. 413. And see Gould’s Plead. § 3, ch. 4, p. 159.) Another rule of pleading is, that the complaint, or answer, should consist of allegations or averments of fact, stated positively, or upon information and belief. This second count contains no allegations of fact, except that questions have arisen under, or in respect to the will, set out in the first count. The reference to the will, as set out in the first count, is in these words: “Assuming that the said instrument was duly executed,” &c. This, I think, is not a sufficient reference to the preceding count, to make the will a part of the second count. To make the will a part of the second count, by a proper reference thereto, such reference, I think,
The demurrer, if I am right in this view, is well taken, and the order overruling the same should be reversed, with leave to the plaintiff to amend the complaint, on payment of costs.
Welles, J. concurred.
J. 0. Smith, J. dissented.
Order reversed.
James G. Smith, Welles and E. Darwin Smith, Justices.]