Wallace v. Jones — 68 A.D. 191

Majority

p. 191

George Wallace, Appellant, v. William H. Jones and Others, Respondents.

Headnote

Taxpayer’s action asking a separate judgment against each of several supervisors defendant —what the complaint must set forth in each cause of action.

The amended complaint in a taxpayer’s action, brought against three of the supervisors of Nassau county and the treasurer of that county, contained six preliminary paragraphs descriptive of the official status of the several defendants and the time of such status. In the subsequent paragraphs, each of which began with the words “making the first six sections herein a.part thereof," the plaintiff set up five causes of action alleging acts showing in each the liability of one or the other of the defendants for acts done by him at the times therein mentioned, either for illegal audit or payment. The complaint then' prayed for a separate judgment for a certain sum against each defendant.

Held, that a motion that the complaint be made more definite and certain should be granted;

That the complaint should state, in each paragraph setting out a separate cause of action, the official position of the defendant against whom judgment was demanded, the capacity in which he acted and all the facts necessary to make that cause of action complete in itself.

Appeal by the plaintiff, George Wallace, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on The 21st day of September, 1901, granting the defendants’ motion for an order that the second amended complaint be made more definite and certain and for a bill of particulars.

George Wallace, appellant, in person.

Henry A. Monfort [.Frederick Ingraham with him on the brief], for the respondents.

The complaint, in a taxpayer’s action against the defendants Jones, Cox and Willetts, supervisors of Nassau county, and the defendant Eastman, treasurer of said county, contained six preliminary paragraphs of allegations descriptive of the official status of the several defendants and the time of such status. Subsequent paragraphs set up five causes of action alleging acts showing the liability of one or other defendant for acts done by him at the times therein named, either for illegal audit or payment,, without embodying any of the descriptive clauses in any of tlie first six paragraphs. On motion, the Special Term struck out each of the six paragraphs unless plaintiff should serve an amended complaint. An amended complaint was served which contained the six preliminary paragraphs and added at the commencement of «each of the other paragraphs the . words, “ making the first six.sections herein a part thereof.”

On motion, an order was made directing the plaintiff to amend his amended complaint, so that each of the paragraphs relating-to the several causes of action should show on its face the date and amount of the illegal audit or payment therein complained of, and identify the particular audits by Jones, Cox and Willetts, as supervisors, complained of, and should show in what respect the defendant Eastman, as treasurer, had acted illegally in making payments. From this order the plaintiff appeals. ■

It is not clear that an- omnibus action of this character can be maintained at all, although we do not pass upon the point. The complaint prays for separate judgments for different sums against each of the defendants. Where there is a jtiinder of causes of action the general rule is that it must appear on the face of the complaint that they all affect all parties to the action. (See Code Civ. Proc. § 484.) Here several acts/are alleged, all of which taken together do not purport to create any liability as to all of the defendants. (See Arkenburgh v. Wiggins, 13 App. Div. 96 ; affd., without opinion, 162 N. Y. 596 .)

But this suggestion makes it all the more clear that the. order to amend the complaint in the particulars stated was proper. No one of the several causes of action alleged is complete in itself. The complaint should state in each paragraph setting out a separate cause of action the official position of the defendant, against whom

p. 193

a judgment is asked and the capacity in which he acted and all the facts necessary to make that cause of action complete on its own face.

The order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Arkenburgh v. Wiggins 13 App. Div. 96 N.Y. App. Div. 1897-01-19 p. 191