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Taylor v. Blue Ridge Marble Co.

31 N.Y.S. 513 Court N.Y. Gen. Term Decision date 1894-12-14 English

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p. 513
(83 Hun, 30.)
TAYLOR v. BLUE RIDGE MARBLE CO. et al.
(Supreme Court, General Term, First Department.
December 14, 1894.)

Headnote

Pleading—Separating and Numbering Causes oe Action.
A complaint alleged that defendant agreed to furnish a contractor with certain building materials, and that afterwards plaintiff’s assignor contracted with defendant to furnish the balance of the materials; that such contract was induced by false representations, and was repudiated by plaintiff’s assignor as soon as he discovered the fraud, and a mechanic's lien was filed for the materials furnished; that afterwards, an action having been brought, an agreement was made by which the action was discontinued and the lien satisfied, and the moneys received by the contractor were to be paid to a trust company to the joint order of the attorneys for plaintiff’s assignor and defendant. The prayer of the complaint was for specific performance of the contract under which the action was dismissed, and that plaintiff be paid, out of the money so to be deposited, the value of the materials furnished by his assignor. Held, that the action was in equity for the purpose of creating a fund and for distribution, and did not state several causes of action, which plaintiff would be compelled to separately state and number.
Appeal from special term, New York county.
Action by George L. Taylor against the Blue Bidge Marble Company and others for specific performance of a contract, arid for an accounting. From an order requiring plaintiff to amend his complaint by separately stating and numbering two causes of action, plaintiff appeals.
Reversed.
Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
Edward W. Crittenden, for appellant.
Julius F. Workun, for respondent.

If two causes of action are set forth in the complaint, then the order below was right, in directing the separation and numbering of such causes of action. The question presented, however, is whether there are two causes, or one, set forth in the complaint. The complaint alleges that the firm of Byrne & Perry had a contract for the erection of a church; that the defendant the Blue Ridge Marble Company contracted with them to furnish the material and perform the work required by the marble specifications of the plans for said church; that thereafter the Piedmont Marble Company, plaintiff’s assignor, contracted with the Blue Ridge Company to complete the latter’s contract with Byrne & Perry; that this contract was induced by false representations, which, when the falsity was known, led the Piedmont Company to repudiate the contract, and file a mechanic’s lien for the value of the material furnished; that thereafter, an action having been brought, an agreement was entered into between the parties to this suit, by which the action was discontinued and the mechanic’s lien satisfied, and the moneys, as received by Byrne & Perry from the church, were to be paid in to a trust company to the joint order of the attorneys for the two marble companies, and, if Byrne & Perry did not pay in to the trust company $0,000 when the last

p. 514
payment should be due from the church, that firm was to give an order on the church to pay in to the trust company such an amount as would make up the sum agreed; that by a subsequent agreement the plaintiff and the Blue Ridge Company and the attorneys contracted for the disposition of the money deposited with the trust company; and that, although the payments provided to be made by the church to Byrne & Perry are due, the latter have paid nothing in to the trust company, and have refused to give their order on the church. The prayer of the complaint, in substance, asks that the contract entered into between the parties should be specifically performed, and that, out of the moneys so to be deposited, the plaintiff receive the value of the work, labor, and material furnished.

It is insisted that there are two causes of action stated,—one against the Blue Ridge Marble Company for the value of material furnished, and another for the specific performance of a contract made by the firm of Byrne & Perry and the marble companies,— and that these should be separately stated. We think, however, that in this the respondent is in error. This is not an action at law, but a suit in equity for the purpose of creating a fund, and then, as a result of or an incident to the creation of the fund, its distribution, and all. persons having any interest in the fund or its distribution are made parties to the action. The action may be rightfully regarded as brought to enforce the contract made between all the parties to the action, which had for its object the discontinuance of plaintiff’s action, and the substitution of a fund in the trust company. The grievance is the failure of some of the parties to provide the fund as agreed, and, as shown by the complaint, the object of the action is to create a fund, and then, with all persons who could have any interest therein being made parties, to determine as to its distribution. There are not, therefore, two causes of action at law, but the facts furnish the grounds for, relief in a court of equity, and constitute, in the language of the Code, "a cause of action.” We think the order below was erroneous, and should be reversed, with $10 costs and disbursements.