Combs v. Dunn

Angle, J. The alleged ground of this motion is, that the complaint contains two causes of action, one for fraud and the other on contract, in one of which the right to an order of arrest depends on the nature of the action and in the other it depends upon extraneous facts. In either view I see no ground for vacating the order of arrest. For the balance of the motion, viz., that the plaintiff be required to amend his complaint by striking out all the causes of action therein contained, except that on which he is entitled to an order of arrest, and that he be compelled to elect upon which cause of action he will rely, the question still remains whether this complaint does in fact contain the two causes of action as alleged. I shall not go through and analyze the cases bearing upon the point, but will refer to the more prominent ones in the highest courts (Elwood agt. Gardner, 45 N. Y., 349; De Graw agt. Elmore, 50 id., 1; Ross agt. Mather, 51 id., 108; Dudley agt. Scranton, 57 id., 424; Graves agt. Waite, 52 id., 156; Barnes agt. Quigley, 59 id., 265; Greentree agt. Rosenstock, 61 id., 583; Mathews agt. Cady, 61 id., 651) and state, as my conclusion, that the complaint in this action is in fraud and that the plaintiff cannot recover without proving the fraud alleged. Peck agt. Root (5 Hun, 547) is quite in point, though there may be some question whether one of the reasons given in the opinion (p. 550), viz., “ pleadings are to be construed most strongly against the pleader,” is sound. In Olcott agt. Carroll (39 N. Y., p. 438), judge Woodruff, speaking for the court, says: “It is not true that, under the Code, if there be uncertainty in respect to the nature of the charge it must be construed strictly against the pleader; ” while commissioner Hunt, in Bunge agt. Coop (48 N. Y. p. 231), applies “ the principle that the pleading is to be construed most strongly against the pleader” as useful in that case. The motion is denied, but, as there is such a conflict' or confusion of cases, it is without costs.