Opinion
September 15, 1909.
Fitch Kiley [ Judson A. Gibson of counsel], for the appellant.
Pavey Moore [ Henry W. Coley of counsel], for the respondent.
The complaint contains allegations sufficient to constitute a cause of action against the demurrant Barnum for the recovery of the property, and the relief demanded is sufficiently comprehensive to permit a money judgment for the value thereof in case the property itself is not delivered to plaintiff. Where the facts stated entitle the plaintiff to some relief, and the relief demanded is in harmony with the allegations, a complaint is not demurrable merely because it contains unnecessary and irrelevant allegations and demands judgment for more than the facts warrant. ( Pape v. Pratt Institute, 127 App. Div. 147; Doyle v. Delaney, 112 id. 856; Hotel Register Co. v. Osborne, 84 id. 307; Middleton v. Ames, 37 id. 510; Wisner v. Consolidated Fruit Jar Co., 25 id. 362.)
In the case last cited an attempt had been made to plead an equitable cause of action. It was held, however, that the cause of action alleged was legal. Mr. Justice FOLLETT, in writing for the court, said: "It is true that the plaintiff, in addition to his demand for a money judgment, also demands an accounting, but this does not make the action an equitable one. In case a plaintiff, by accident or design, sets forth a legal cause of action in his complaint which he erroneously supposes to be an equitable cause of action, and demands a money judgment, a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action will not be sustained. * * * On the facts set forth in the complaint the plaintiff has no equitable cause of action, but has a legal one, and having demanded a money judgment as well as equitable relief the complaint is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. ( Porous Plaster Co. v. Seabury, 43 Hun, 611; Wetmore v. Porter, 92 N.Y. 76.)"
This complaint, therefore, may be sustained as stating a common-law cause of action in replevin notwithstanding that it may contain allegations irrelevant to such a cause of action, and the demurrer must be overruled so far as it attacks the complaint for insufficiency.
It is said, however, that the complaint also contains an equitable cause of action against other defendants and that the demurrer should be sustained on the ground that causes of action have been improperly united. If it is true that the complaint alleges a cause of action in equity the demurrer must be sustained, because it is very clear that under section 484 of the Code of Civil Procedure a cause of action for the recovery of a chattel cannot be united with a cause of action of a different nature; neither would both of such causes of action affect all the parties hereto as required by that section. But the complaint does not state any grounds for equitable intervention. The injury sustained by the plaintiff is not irreparable and he has an adequate remedy at law. In 22 Cyc. (p. 817) in a foot note the rule is stated as follows: "Equity will not interfere to prevent an injury to or sale of ordinary personal chattels or property since an action at law for damages is an adequate remedy." Equity of course will interfere where special or extraordinary reasons are shown, but this complaint alleges a definite value for the stock which value may be recovered as against this demurrant whose pecuniary responsibility is unquestioned, and there is nothing to indicate that such pecuniary compensation will not adequately compensate the plaintiff or that there is any peculiar or special reason why he should desire to retain the stock rather than to receive its pecuniary equivalent. The allegations pertaining to equitable relief as against other defendants being insufficient to warrant relief of that nature should, therefore, be disregarded and the complaint construed as containing only a common-law cause of action. (See cases above cited.)
The statement in the complaint that because the stock certificates are out of the State plaintiff "is unable to replevy or proceed in a regular action for the possession of the said stock" does not destroy the character of the complaint as being in replevin because it merely describes the inability of plaintiff to compel the delivery to himself of the specific property instead of its pecuniary value which latter may be recovered in such an action if the defendant fails to deliver the specific property or plaintiff is unable to recover it. Neither is such statement sufficient ground for equitable relief in the absence of facts showing that a money judgment will not fully redress the grievance of plaintiff.
This is not a case where the facts alleged constitute two or one of two inconsistent causes of action and the problem is to determine which shall be recognized. Only one cause of action is here alleged notwithstanding that irrelevant facts are contained in the complaint; that judgment is demanded for more extensive relief than the facts warrant, and that unnecessary parties have been brought before the court.
The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, and with leave to the respondent to withdraw the demurrer and serve an answer within twenty days on payment of costs in this court and at Special Term.
All concurred; SMITH, P.J., and KELLOGG, J., in result.
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, and with leave to respondent to withdraw the demurrer and serve an answer within twenty days on payment of costs in this court and at Special Term.