Payne v. New York, Susquehanna Western R.R. Co.

Full title: JAMES W. PAYNE, Respondent, v . NEW YORK, SUSQUEHANNA AND WESTERN RAILROAD…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 2, 1910

141 A.D. 833 (N.Y. App. Div. 1910)

125 N.Y.S. 1011

Opinion

December 2, 1910.

Watts, Oakes Bright, for the appellant.

Abram F. Servin and Rosslyn M. Cox, for the respondent.

THOMAS, J.:

This is an appeal from an order denying defendant's motion to make the complaint more definite and certain, wherein it alleges that the plaintiff was thrown from a car "by a sudden and violent action of the train" and a similar allegation that "Said injuries were caused by the improper movement of the train upon which plaintiff was at work," and also by setting forth plainly either a cause of action based on defendant's common-law liability, or upon the New Jersey Employers' Liability Act, or upon the Employers' Liability Act passed by Congress in 1908, or by setting forth three separate causes of action.

The only question is whether, if plaintiff intends to rely upon the common law or one or both of the statutes, he should so state. There are three possible causes of action, each distinct from the others. Plaintiff relies upon Acardo v. New York Contracting Trucking Co. ( 116 App. Div. 793) which does not necessarily aid him, while Uss v. Crane Co. (138 id. 256) and Gmaehle v. Rosenberg ( 178 N.Y. 147) support the defendant.

The complaint furnishes a statement which permits the plaintiff to invoke either the common law, the Federal statute, or the statute of New Jersey, which is set out. If the plaintiff may rely upon one or all of these causes of action at the time of trial, I think he should so state to enable defendant to know what he may meet. These causes of action are entirely distinct, and there is no reason whatever for allowing the plaintiff to conceal his claim until the trial is under way.

I think the order should be modified by directing the plaintiff to separate and number the causes of action if he intends to set forth a cause of action other than under the common law, and as so modified the order should be affirmed, without costs.

HIRSCHBERG, P.J., WOODWARD, JENKS and CARR., JJ., concurred.

Order modified by directing the plaintiff to separate and number the causes of action if he intends to set forth a cause of action other than under the common law, and as so modified affirmed, without costs.