Union Transit Co. v. Erie Railroad

Wheeler, J. The paragraph of the complaint made the subject of this motion alleges that, during the years 1899 to 1903, inclusive, the plaintiff transported for the defendant certain quantities of copper and that defendant agreed to pay the freight charges thereon, which the complaint alleges it was agreed amounted to $99,001.43; on which sum a balance of $10,024.51 is alleged still due and owing the plaintiff. The complaint then continues and alleges that, on November 20, 1903, the parties agreed upon a rate of two and one-half cents per 100 pounds for the freight charges on said copper, to wit, the sum of $22,972.22, in settlement of the then unpaid balance of said indebtedness, on which said defendant has paid $16,065.81 and no more. The complaint then continues. and alleges that, on or about the 20th day of [294] Uovember, 1903, an account of said freight charges upon said copper was stated by and between the parties and, at said rate of two and one-half cents per 100 pounds, $16,-120.12 was found due from the defendant to the plaintiff, which the defendant then and there agreed to pay. Also that, on or about the 14th day of December, 1903, an account of said, freight charges on all of said copper during the year 1903 was stated between the plaintiff and defendant; .and, upon such statement, a balance of $6,852.10 was found due from defendant to the plaintiff, which defendant promised to pay to plaintiff. Then follows an allegation of certain payments made by the defendant, on December 29, 1903, and April 18, 1904, respectively. Counsel for the defendant insists that the complaint alleges different causes of action, which should be separately numbered and set forth; and, for those reasons, the motion should be granted. We do not so read the complaint. A complaint is not to be deemed to unite several causes of action simply because it sets forth several grounds on which the defendant might be liable in respect to the same transaction. Walter v. Continental Ins. Co., 5 Hun, 345. In that case, the complaint set forth in detail the issuing of a policy by the defendant, the loss of the property by fire, the due making of proof of loss, and that the plaintiff and defendant negotiated with the plaintiff and agreed to give her $3,800 for her loss and damage, in full settlement, and, further, that the plaintiff demanded of the defendant, in pursuance of the requirements of the policy, to have the loss ascertained by arbitrators; that the defendant refused and that, thereupon, on notice to it, they selected arbitrators who ascertained the damages at $3,800. A motion for an order, requiring the plaintiff to make her complaint more definite and certain by stating an alleged cause of action on an insurance policy, separately from an alleged cause of action on an award, was denied. The principle stated was subsequently recognized and followed in the case of Pittsfield Ntl. Bank v. Tailer, 60 Hun, 130. We think the complaint in this case falls within the rule laid down in the cases cited. It simply states the facts re [295] iating to one transaction. But one recovery can be had upon one or all of the grounds set forth. The motion should be denied, with ten dollars costs of motion. Motion denied, with ten dollars costs.