Opinion
May 26, 1925.
Appeal from Supreme Court of St. Lawrence County.
Sparks Fuller [ Jesse Fuller, Jr., of counsel], for the appellants.
Lawrence Russell and Frank L. Cubley, for the respondent.
It was held at Special Term and we understand it to be the contention of the plaintiff that the complaint sets forth a cause of action at law. Judgment, however, is demanded not for legal but for equitable relief. This is a defect which if objection thereto is properly made before answer, as it is in this case, requires a dismissal of the complaint. ( Consolidated Rubber Tire Co. v. Firestone Tire Rubber Co., 135 App. Div. 805; affd., 199 N.Y. 536; Chadbourne v. Mayer, 207 App. Div. 754; Spring v. Fidelity Mutual Life Ins. Co., 183 id. 134.) The case of Sims v. Farson ( 157 App. Div. 38), a case in this court, decided nothing to the contrary. That was an action at law and the demand for judgment while unusual in form was really a demand for a money judgment. It was stated in the opinion to be "practically a demand for $2,000 with accrued interest." That the court did not intend to decide anything opposed to the foregoing views is apparent from the fact that the judge who wrote the opinion in that case also wrote the opinions in two of the three cases first above cited. A plaintiff in a commonlaw case may be entitled to the provisional remedy of an injunction or of a receivership or may be entitled to an examination of a party before trial to ascertain the condition of accounts or otherwise without being entitled to ask for those methods of relief in his demand for judgment, the effect of which would be to characterize or label his action as one in equity when in fact it is an action at law. Such a practice may have the effect of misleading opposing counsel and the trial justice. While for the reasons stated the complaint must be dismissed, it may not be out of place to indicate that the 8th, 12th, 13th and 14th paragraphs of the complaint are irrelevant although no criticism has been leveled against the 14th paragraph. They are either repetitious or evidentiary in character. A complaint should contain a concise statement of the facts constituting the cause of action. This does not mean that evidence should be pleaded but the facts which the plaintiff intends to support by evidence to be produced at the trial. (See Civ. Prac. Act, §§ 241, 255.)
The order should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint should be granted, with ten dollars costs, but with leave to the plaintiff to serve an amended complaint on the payment of said costs.
All concur.
Order reversed on the law, with ten dollars costs and disbursements, and motion to dismiss complaint granted, with ten dollars costs, but with leave to the plaintiff to serve an amended complaint on the payment of said costs.