Wallace v. Jones — 74 N.Y.S. 116

Majority

p. 116

(68 App. Div. 191.)

WALLACE v. JONES et al.

(Supreme Court, Appellate Division, Second Department.

January 17, 1902.)

Headnote

Pleading—Complaint—Joinder of Actions—Separate Paragraphs—Mutual Reference.

A complaint against several defendants in their official capacities, which in six preliminary paragraphs described the official status of the several defendants and the time of such status, and in others alleged several causes of action against one or the other defendant for acts done by him at times therein named,—each of the second sections being connected with the first by an introductory allegation that the first were made a part thereof,—is insufficient, since each paragraph setting out a separate cause of action should set out the official position of the defendant against whom judgment is asked, the capacity in which he acted, and all facts necessary to make that particular cause of action complete on its own face.

Appeal from special term, Kings county.

Action by George Wallace against William H. Jones and others. From an-order requiring plaintiff to make his complaint more specific, he appeals.

Affirmed.

Argued before GOODRICH, P. J„ and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.

George Wallace, in pro. per.

Henry A. Monfort (Fred. Ingraham, on the brief), for 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 the 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 joinder of causes of action, the general rule is that it must appear on the face of the com

p. 117

plaint that they all affect all parties to the action. See section 484, Code Civ. Proc. 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 , 43 N. Y. Supp. 294 , affirmed without opinion in 162 N. Y. 596 , 57 N. E. 1103 . 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 defendants against whom 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.

Order affirmed, with $10 costs and disbursements. All concur.

Cases cited

Arkenburgh v. Wiggins 13 App. Div. 96 N.Y. App. Div. 1897-01-19 p. 117