Dorman v. Kellam

By the Court,* Balcom, J. —The only important question in this case is, whether the complaint is demurrable for the reason that it contains two causes of action upon two promissory notes, which causes of action are numbered, but not separately stated, as they should be according to Rule 86 of the Supreme Court (Code, § 167, subd. 7). Several causes of action are improperly united in a complaint when they differ in character (Moore a. Smith, 10 How. Pr. R., 361). To illustrate;—a cause of action upon a promissory note and one for an assault and battery cannot be united in the same complaint. Such a complaint is demurrable (Code, § 144, subd. 5). But several causes of action upon several promissory notes may be united in the same complaint (Code, § 166, subd. 2). They are not “ improperly united,” simply be cause they are not separately stated. This is shown by section 172 of the Code, which provides that “ if the demurrer be allowed for the cause mentioned in the fifth subdivision of section one hundred and forty-four, the court may in its discretion and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.” There can be no necessity for dividing an action upon two promissory notes and making two actions of it. Section 144 of the Code prescribes the causes for which the defendant may demur to the complaint; and it is not made a ground of demurrer that several causes of action in the com [204] plaint are not separately stated' or plainly numbered according to the requirements of the last clause of section 167 of the Code, and Rule 86 of the court. Hence if two causes of action upon two promissory notes are united in the same complaint, the defendant cannot demur to it on the ground that the causes of action are not separately stated or plainly numbered ; but if aggrieved thereby, he must make a motion to set aside the complaint for such cause. The omission of the plaintiff to separately state several causes of action in the complaint, or to plainly number them, is a mere irregularity; and it is no more a ground of a demurrer under the Code than the neglect to name the county in the complaint in which the plaintiff desires the trial to be had, or the omission to folio the complaint according to Rule 41 of the Court (Code, § 142, suhd. 1). The remedy of the defendant for such irregularities is by motion and not by demurrer.* (See Code, § 160; Boyce vs. Brown, 7 Barb., 80; Forsyth a. Edmiston, 11 How. Pr. R., 408 ; Martin a. Kanouse, Ib., 567; McKinney a. McKinney, 12 Ib., 22; Waller a. Raskan, Ib., 28 ; Moffat a. Pratt, Ib., 48 ; Ridder a. Whitlock, Ib., 208.) The correct practice was adopted in Benedict a. Seymour (6 How. Pr. R., 298), where defences were stricken out of an answer upon a motion for that purpose, because they were not separately stated according to the last clause of section 150 of the Code. (See Clark v. Farley, 3 Duer, 645.) This practice was sanctioned in Waller a. Raskan (12 How. Pr. R., 28). The case of Landau a. Levy (1 Abbotts’ Pr. R., 376), does not necessarily conflict with the case of Benedict a. Seymour, or with that of Waller a. Raskan, before cited. I am compelled to differ with the learned judges who delivered the opinions in the following cases :—Getty a. The Hudson River Railroad Company (8 How. Pr. R., 177); Van Namee a. Peeble (9 Ib., 198); Durkee a. The Saratoga and Washington Railroad Company (4 Ib., 226); Pike a. Van Homer (5 lb., 171); Accome a. The American Mineral Company (11 Ib., 27). These are all special term decisions: we can therefore overrule them without creating much serious confusion in the practice, and I [205] think we ought to do so, because they do not harmonize with the mandates of the Code. For these reasons the judgment of the special term should be affirmed. Footnotes [*] Present, Shankland, Gray, Mason, and Balcom, JJ. [*] To the cases here cited should now he added Badger a. Benedict, Ante, 176 ' decided since the above opinion was delivered.