Victory Webb, &c., Mfg. Co. v. Beecher

Lawrence, J. The complaint in this action contains seven counts, and each of the counts is alleged as a separate .and distinct cause of action. The defendants are sought to be held liable for certain indebtedness alleged to have been incurred by the Christian Union Publishing Company. The first six counts of the complaint do not contain an allegation of a single fact which shows why or for what reason the defendants should be held responsible for the debts of the Christian Union Publishing Company, and that corporation is not made a party to this action. It is alleged in the fifth paragraph of the first count of the complaint that certain of the defendants were for the first year of the existence of the corporation its trustees, but there is no allegation of fact showing, or tending to show, why, as such trustees, the defendants, or either of them, should be held responsible for the debts of the corporation. In Simmons agt. Fairchild (42 Barb., 404) Mr. justice E. Darwin Smith in delivering the opinion of the court states “ that it is a fundamental rule in pleading that where 'there are separate counts in a complaint each must disclose; a distinct right of action,” and he proceeds to quote' from Chitty’s Pleadings, 413, wherein it is laid down that “ 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 (See, also, Gould’s Pl., sec. 3, chap. 4, p. 159; Loosey agt. Orser, 4 Bos., 392; Sinclair agt. Fitch, 3 E. D. Smith, 677; The Xenia Branch Bank agt. Lee, 7 Abb., 372, 373 ; Spencer agt. Babcock, 22 Barb., 327). The first six counts of the complaint then standing alone fail to disclose any cause of action against those defendants who appear, from either of any of said counts, to have been trustees of the corporation which is alleged to be the debtor of the plaintiffs. Unless, therefore, there is something in the complaint which can be construed as a general allegation referring to each and [203] every of the first six counts, and connecting such general allegations with each of such counts, this demurrer must be-sustained as to the several causes of action contained in those counts. The plaintiff contends that such an allegation is to be found in the twenty-first paragraph of. the complaint which is one of the subdivisions of the seventh or last count. This paragraph does not in any way refer to the six preceding separate and distinct causes of action within the rule stated in Simmons agt. Fairchild (42 Barb)., 404). I am of the opinion that the demurrer to the first six counts, or alleged causes of action set forth in the complaint, must be sustained. The case of Goldberg agt. Utley (60 N. Y., 427), which is relied on by the learned counsel for the plaintiff, simply decided that the provisions of the Code requiring different causes of action joined in a complaint to be separately stated related only to questions of practice over which the court below had control; and in the case of Bass agt. Comstock (38N. Y., 21) the court held that a demurrer would not lie to a complaint containing different causes of action which might-be united merely because they were not separately stated and numbered. Neither of these cases affect the question now under consideration, and the same may be said in regard to the case of Wiles agt. Suydam (64 N. Y., 173). It is, then, only necessary to examine the seventh count for the purpose of ascertaining whether that states a cause of action against the defendants. This count is not amenable to the objection that there is nothing stated in it which goes to show the liability of the-defendants as trustees. The allegation that the defendants were the trustees of the Christian Union Publishing Company and that defendants had made default in filing their annual report is contained in this count. I am of the opinion that it does sufficiently appear that the-machine was built at the request of the corporation. It is-averred that the machine was constructed under the direction [204] of the company. This is equivalent to a command that the machine should be constructed for the company by the plaintiffs and, therefore, amounts at least to a request. The defendants are entitled to judgment on- the demurrer as to the first six counts, but the demurrer is overruled as to the seventh, and leave will be given to the plaintiffs to amend.