Rothschild v. Grand Trunk Railway Co. of Canada — 38 N.Y. St. Rep. 869

Majority

p. 869

Bernard Rothschild et al., Resp’ts, v. The Grand Trunk Railway Co. of Canada, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 2, 1891.)

Headnote

1. Pleading—Complaint—Demurrer.

A complaint alleged that the defendant, for a valuable consideration, agreed with the plaintiffs to carry from Detroit to Rochester certain trunks, but that the defendant so negligently carried such property that the same was lost and not delivered to the plaintiffs. A demurrer was interposed upon the ground that two causes of action, one on contract and the other for injuries to personal property, had been improperly joined. Reid, that but one cause of action was stated, negligence of the defendant, and that in any event the causes of action arose out of the same transaction, and the facts might be alleged.

2. Same—Failure to allege corporate character must be reached BY MOTION.

An omission to allege the corporate character of the defendant is not available on demurrer; it must be reached on motion.

Appeal from an interlocutory judgment entered April 25,1890> in Monroe county, overruling the defendant’s demurrer to the complaint

George F. Brownell, for app’lt; David Hays, for resp’ts.

There are three counts* set forth in the complaint, the first of which is, that on or about the 27th day of April, 1889, the defendant, for a valuable consideration, agreed with "the plaintiffs to carry from Detroit, Michigan, to Rochester, M. Y., two trunks containing goods of the value of $1,000, belonging to the plaintiffs, but that the defendant so negligently carried such property that the same was lost and not delivered to the plaintiffs.

The second count is, in substance, that in violation of the agreement of the foregoing date, under an arrangement to transport the same from Detroit to Buffalo, the defendant so negligently carried the trunks that their contents, together with the trunks themselves, were destroyed at the city of Hamilton, on the line of the defendant’s railroad.

The third count is a.statement of the same matter under allegations that the agreement was to carry one Herman Kern as a passenger, together with the same trunks, from Detroit to Buffalo.

The demurrer was interposed to each count upon the ground that two causes of action had been improperly united, one being upon a contract and the other for injuries to personal property. And secondly, that the court had no jurisdiction of the subject of the cause of action. Third, that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled at special term with permission to the defendant to answer, on terms, and an interlocutory judgment was accordingly entered and from that judgment this appeal is taken.

In our judgment the demurrer is untenable. There is but a single cause of action stated in each count. The complaint is" put upon the ordinary grounds that the defendant, owing a duty to the plaintiffs by reason of its undertaking, negligently violated

p. 870

that contract to the damage of the plaintiffs. This constitutes a cause of action,‘solely, for the negligence of the defendant. In any event, as was stated by the learned justice at the special term, the supposed two causes of action arose out of the same transaction, and consequently, it is not improper to allege the facts in relation thereto. Code of Civ. Pro., § 484, subd. 9. The defendant being a common carrier owed a duty to the plaintiffs to transports the trunks and their contents, under the agreement, safely to their destination, and in failing to do so a cause of action has arisen to which it must respond.

As a matter of argument, it is further urged under the allegation, that the complaint does not state facts sufficient to constitute a cause of action ; that the pleading is defective and demurrable under § 1775 of the Code of Civil Procedure, which requires the pleading to state whether the party is a corporation or not, and, if a corporation, whether it is a domestic or. foreign corporation, and if a foreign corporation to allege the state, county or government by or under whose laws it was created. We fully concur in the reasoning of the court to the contrary of this contention, in the case of Hafner & Schoen Furniture Company v. Grumme, 10 Civ. Pro., 176. If any advantage can be taken of the omission to allege the corporate character of the- defendant, the same is not available by demurrer though it may be reached by motion.

The interlocutory judgment appealed from should be affirmed.

Dwight, P. J., concurs.