Erie Railroad v. Hilton — 171 A.D. 545

Majority

p. 545

Erie Railroad Company, Appellant, v. Samuel J. Hilton and Others, Copartners Doing Business under the Firm Name and Style of Hilton, Gibson & Miller, Respondents.

Second Department,

March 10, 1916.

Headnote

Pleading — action to recover demurrage charges on several cars at different times—complaint — motion to compel plaintiff to separately state and number causes of action.

Where, in an action by a railroad company to recover demurrage charges on several cars at different times, the plaintiff intended to state but a single cause of action .and it is “ fairly doubtful ” whether the complaint departs from this purpose, a motion to require the plaintiff to separately state and number the causes of action should be denied.

Putnam, J., dissented.

Appeal by the plaintiff, Erie Railroad Company, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Orange on the 14th day of -October, 1915, requiring it to serve an amended complaint separately stating and numbering its causes of action.

Philip A. Borty, for the appellant.

Graham Witschief, for the respondents.

The action is to recover $266 demurrage charges on thirty-six cars at different times carried by the plaintiff and delivered to the defendant. The charges rest upon the regular tariff of plaintiff on file with the Interstate Commerce Commission, and these charges the plaintiff must by law collect from the defendant. It appears that the plaintiff on its books carried charges as a running account against the defendants, although one of the defendants denies that there was a running account. The defendants moved the Special Term to order an amended complaint, separately stating and numbering the causes of action. The motion was granted and the plaintiff appeals.

The theory of the defendants is that each transaction as to each car constituted a separate cause of action. I think that the plaintiff intended to state but a single cause of action, and that it may be said that it is “ fairly doubtful ” whether the complaint departs from this purpose. And so the rule of our decision in Pope v. Kelly ( 30 App. Div. 253 ) may be applied. (See, too, Weed v. First National Bank, 106 App. Div. 285 -287; Baruch v. Young, 149 id. 466, 468.)

I think that the motion should be denied under the authority of Langdon v. New York, L. E. & W. R. Co. ( 15 N. Y. Supp. 255 ). (See, too, Baruch v. Young, supra; Randall v. Circuit Judge, 96 Mich. 284 , 286.) I can even say that within the rule and exceptions stated in Secor v. Sturgis ( 16 N. Y. 548 ), cited by the learned counsel for the respondents, it may appear that the circumstances are such as to raise an implied contract embracing all the items, to make them, although arising at different times, a single and entire demand or cause of action.

The order is reversed, with $10 costs and disbursements, and the motion is denied, without costs.

Thomas, Carr and Rich, JJ., concurred; Putnam, J., dissented.

Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.

Cases cited

Secor v. Sturgis 16 N. Y. 548 N.Y. p. 545