Sandford v. Fourth National Bank — 39 N.Y. St. Rep. 456

Majority

p. 456

Mary D. Sandford, App’lt, v. The Fourth National Bank of the City of New York et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

1 Pleading—Complaint—Alteenative belief.

Plaintiff, "by her complaint, alleged that S. stole 100 shares of Adams Express stock from her and borrowed money thereon from F. and M., who refuse to surrender them, and that the money received by S. was deposited in defendant’s bank, and prayed that F. and M. be required to deliver up the certi: cate or pay her its value, or in case she fails against F. and M., that the bank be required to pay her the amount deposited. Held, that plaintiff had elected to pursue her stolen property, and so had no cause of action against the bank.

p. 457

2. Same—Demurrer.

Furthermore, the complaint was demurrable as joining two inconsistent causes of action and neither affecting all the defendants.

Appeal by the plaintiff from an interlocutory judgment of the special term, sustaining a demurrer interposed by the defendant, The Fourth National Bank of the City of New York.

George W. Wingate, for app’lt; David Wilcox, for resp’ts.

—The plaintiff in substance alleges that she was on the 14th of November, 1890, the owner of 100 shares of the stock of the Adams Express Company; that on that day one Albert H. Smith stole the certificate representing these shares and borrowed money thereon from the defendants, Ferris and Kimball, and that she has demanded the certificate from Ferris and Kim-ball, but that they have refused to give it to her. Upon these averments she demands judgment that Ferris and Kimball be required either to deliver the certificate to her or to pay her its value.

Having thus formulated her case against Ferris and Kimball,, she proceeds to state that Smith’s firm deposited the money which he so borrowed from Ferris and Kimball in the defendant bank, and on this latter averment she demands a further judgment that, in case she. fails in her action against Ferris and Kimball, the bank be required to pay her the amount so deposited.

This novel complaint is sought to be justified and sustained by the frank avowal that the case is troublesome and that the plaintiff is not quite sure how she is “ coming out ” in her action against Ferris and Kimball. So she thought it best to state all the facts and leave the court to work out for her a safe result This is carrying the “plain statement” heresy, begotten of the Code, that the plaintiff may simply tell his whole story in his own way and on it ask what he wants, to a somewhat grotesque extreme. The difficulty is that the plaintiff has stated an apparently good cause of action against Ferris and Kimball. That necessarily involves an election to pursue her stolen property. She cannot have both her property and its proceeds. Before she could have any possible claim against the bank she was bound to elect, and if she elected to follow the proceeds of the theft in the hands of a third party, she thus ratified Smith’s act in borrowing the money from Ferris and Kimball and acknowledged the latter’s title. But she has done the very reverse of this, and consequently she has no cause of action against the bank. At all events, there is no such thing known to the law as an alternative cause of action such as is here pleaded.

The complaint must state facts constituting some present cause of action against a defendant. It will not do for a plaintiff to say that in case of defeat with regard to one cause of action pleaded against A he will then (and not until then) have another and different cause of action against B. That is not a statement of facts constituting a present cause of action against B either at law or in equity. But further, the plaintiff has not even pleaded her doubts.

p. 458

In his brief, her learned counsel says that her right to attack the title of Ferris and Kimball to this certificate is a very doubtful question of law. But this expression of doubt is not predicated of any averment in the complaint. Whether the certificate was feloniously or but fraudulently taken, whether it was in fact negotiable or non-negotiable, whether Ferris and Kimball obtained a good title to it or not, are all matters as to which the complaint evinces no uncertainty. On the contraiy, there is a clear, non-demurrable cause of action (prima faciej stated as against Ferris and Kimball. It follows that no cause of action is stated as against the bank.

If, however, the plaintiff had not pleaded alternately, but had alleged the facts as to the loan and deposit as a present and distinct cause of action against the bank, the demurrer would have to be sustained upon the second ground specified as well as upon the first. For in that case the two causes of action would have been improperly joined, they being, as we have seen, inconsistent with each other and neither one affecting all the defendants.

The interlocutory judgment appealed from should, therefore, he affirmed, with costs.

Yan Brunt, P. J., and Patterson, J., concur.