Simmons v. Fairchild, 42 Barb. 404

Simmons v. Fairchild

42 Barb. 404 | N.Y. Sup. Ct. | 1864

E. Darwin Smith, J.

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, *410should have been preceded by a positive allegation, or explicit recital, of the fact that the testator, the said Peter Sines, made and executed his last will and testament, at the time, and in the manner and form aforesaid. This would have been sufficient to make the will a part of the-second count. In the note to Chitty’s Pleadings, (vol. 1, p. 413,) it is said that in a second count, on a deed or agreement, “it is not correct to commence the count by alleging that the deed, or agreement, in the first count, had been made as therein mentioned,” &c. But it would seem to be more correct to aver that a certain other deed or agreement was made, &c. containing like terms and stipulations as contained and set forth in the first count. There must, I think, be, in express terms, or by implication, after an allegation of the making of the will or deed, or paper referred to in the second count, an averment in fact of the due execution of the paper, be it deed or will, referred to; and then due reference to the former count, for its terms, date and manner of execution, &c. may be sufficient. But,' assuming that the reference in this second count, to the will, is sufficient to make it a part of such count, that would not make out a cause of action. Hothing else in the first count would be embraced in such second count, except the will. The count would still be defective, for want of the requisite allegations, to make it operative as a will of either real or personal estate, or the subject matter, in any respect, of a cause of action. There would be, and is, no allegation in the second count, that the testator ever had any real or personal property; that he had died leaving such property; that he left any heirs surviving him, or a widow. Indeed, there is nothing in the second count to show that Peter Sines is not still alive, and entirely competent to manage and dispose of his property. It seems to me quite clear, that there is nothing in the shape of a cause of action presented in this count; and that it cannot be helped out by reference to the first count.

*411[Monroe General Term, September 5,1864.

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.]