Upson Co. v. Erie Railroad

Per Curiam: The alleged cause of action numbered “ second ” in the complaint relates to a number of shipments concededly covered by a separate bill of lading, and contains an allegation of a general failure on defendant’s part to deliver safely. ' The facts relating to each distinct shipment for which a bill of lading was issued constitute a separate cause of action. (Morris & Co. v. Southern Express Co., 197 App. Div. 930.) At least in the absence of additional allegations not now contained in the complaint, the facts in relation to each shipment must be separately stated and numbered. (Rules Civ. Prac. rule 90; Egan & Co. v. Butterworth, 66 App. Div. 480.) The motion is based solely upon the pleading. The plaintiff cannot amplify the allegations of the complaint by affidavit so as to justify its pleading. The complaint must be judged upon its face. The plaintiff in this case presented an affidavit to the effect that the articles included in several different shipments were delivered to the consignee mingled in such a fashion that the particular contents of any particular shipment could not be separately identified or checked. The conduct of the defendant would have its effect upon the character of proof permissible to establish plaintiff’s damage. If the defendant has thus rendered it impossible to prove the particular loss on each shipment by commingling the goods in various shipments, it would be unreasonable to allow the defendant to require from the plaintiff proof as to the particular [264] damage to each separate shipment. (Fletcher v. Dold Packing Co., 41 App. Div. 30; affd., 169 N. Y. 571; 1 Sedg. Dam. [9th ed.] § 170-a.) Under such circumstances a division of the total loss proportionately among the respective shipments would seem to be all that could be required from the plaintiff either as a specification of damage in the pleadings or in the proof. It may be that an allegation of the commingling of different shipments by a carrier wrongfully or in violation of its contractual obligations and the delivery of the shipments in an injured condition while so commingled, if alleged in the complaint, would give rise to a single cause of action. (Cleveland Cliffs Iron Co. v. Keusch, 206 App. Div. 787; affd., 237 N. Y. 533.) We do not pass upon this point as it is not now before us. The order should be reversed, with ten dollars costs and disbursements, and the motion granted requiring the plaintiff to serve an amended complaint as to the second alleged cause of action so as to state and number separately each cause of action therein contained, or otherwise amend the complaint so that it shall not be open to the objection raised upon this motion. All concur. Present — Hubbs, P. J., Davis, Sears, Crouch and Taylor, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted in accordance with the opinion.