Summary
In O'Brien v. Blaut (5 App. Div. 223) an action was brought by the receivers of a bank against several directors for non-feasance and misfeasance, and an order was made compelling the plaintiffs to separately state and number the alleged causes of action.
Summary of this case from Weed v. First National BankOpinion
May Term, 1896.
Samuel Untermyer and Louis Marshall, for the appellants.
William A. Jenner, for the respondent, Frederick Uhlmann.
The order appealed from was made upon the theory that the complaint as amended really alleged several causes and not a single cause of action. The plaintiffs claimed they alleged but one cause of action, and not several. It is not claimed that the amended complaint was indefinite or uncertain. All the facts were stated in detail, as required by the General Term order. This was not a demurrer to the complaint, but the plaintiffs, who claimed that they had alleged but a single cause of action, were required by the order appealed from to separate the facts alleged, to call the separate parts distinct and separate causes of action, and to number them accordingly. We think the court erred in making such an order. Whether the action could be maintained, upon the plaintiffs' theory of a single cause of action in equity, was not involved in the motion and need not be determined here. The proper method of raising and determining that question if desired before the trial was by demurrer. The plaintiffs failed in the Court of Appeals to uphold their original complaint, because the court was of the opinion that the action was not in equity, but that the complaint disclosed several separate causes of action at law against different defendants and that the parties and causes of action were improperly joined. The court did not pass upon the question whether such an action with proper allegations could be maintained in equity. It held that it could not certainly be maintained in the absence of certain allegations. The plaintiffs in their amended complaint sought to supply these necessary allegations and then claimed that the action was one in equity and not at law. The learned judge at Special Term considered the question of the right to maintain the action at all, as if the question were raised by demurrer, and having arrived at the conclusion that it could not be maintained, he was of the opinion that the plaintiffs should be required to separate its one cause of action in equity against all the defendants into several and distinct causes of action at law against different defendants, in order that such separate causes of action might be proper subjects of demurrer by the various defendants. This was not proper. The plaintiffs should have been permitted to allege, what they claimed they had, a single cause of action. They should not have been compelled to allege a large number of distinct causes of action, which they conceded would be proper subjects of demurrer. If the defendants desired to raise the question as to the plaintiffs' right to maintain their one cause of action in equity, they should have done so by demurrer. This was not the proper remedy.
The order appealed from should be reversed, with costs of appeal, and the motion denied, with ten dollars costs.
BARRETT, RUMSEY, PATTERSON and INGRAHAM, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.