Sanford v. Fourth National Bank — 67 N.Y. Sup. Ct. 484

Majority

p. 484

MARY D. SANFORD, Appellant, v. THE FOURTH NATIONAL BANK OF THE CITY OF NEW YORK, Respondent, Impleaded with Others.

Headnote

Demurrer — the plaintiff cannot maintain an action, claiming alternative relief against one defendant, if he fails as against cmother.

A complaint in an action alleged that tlie plaintiff was tlie owner of certain sliares. of stock which, were stolen by the defendant Smith, who borrowed money upon the certificate representing such shares from the defendants Ferris & Kimball, that she had demanded the certificate of Ferris & Kimball, who had refused to-deliver it; and she demanded judgment that they do this or pay her its value. The complaint then stated that Smith’s firm deposited the money thus borrowed with the defendant, the Fourth National Bank, and demanded judgment that, if the plaintiff failed as against Ferris & Kimball, she should have judgment against said bank for the moneys so deposited.

To this complaint a demurrer was interposed by the bank.

Meld,, that no cause of action was stated as against the bank.

That having elected to pursue the stolen property in the hands of Ferris & Kim-ball, the plaintiff could not have judgment against a third party for its proceeds.

That there was no such thing known to the law as an alternative cause of action.

Appeal by tbe plaintiff, Mary D. Sanford, from all that part of the decision of Mr. Justice Ingraham, rendered - upon tbe determination of tbe issue of law raised herein by tbe demurrer of tbe Fourth National Bank of tlie City of New York, defendant to tlie complaint, and to all-tliat part of the judgment entered thereon which finds that tbe complaint does not state facts sufficient to constitute a cause of action as against said defendant, the Fourth National Bank of the City of New York, which said decision was dated April 29, 1891.

George W. Wingate, for the appellant.

David Wileox, for the respondent.

The plaintiff, in substance, alleges that she was, on tbe 14th of November, 1890, tbe owner of 100 shares of the stock of the Adams Express Company; that on that day one Albert H. Smith stole tbe certificate representing these shares and borrowed money thereon from the defendants Ferris & Kimball, and that she lias demanded

p. 485

the certificate from Ferris & Kimball, but tbat they have refused, to give it to ber. Upon these averments she demands judgment tbat Ferris & Kimball be required either to deliver tbe certificate to ber or to pay ber its value.

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

This novel complaint is sought to be justified and sustained by the frank avowal tbat tbe case is troublesome, and tbat tbe plaintiff is not quite sure bow she is “ coming out ” in ber action against Ferris & Kimball. So she thought it best to state all tbe facts and leave tbe court to work out for ber a safe result. This is carrying tbe “ plain statement ” heresy, begotten of tbe Code, that the plaintiff may simply tell bis whole story in bis own way and on it ask what be wants, to a somewhat grotesque extreme. Tbe difficulty is tbat the plaintiff has stated an apparently good cause of action against Ferris & Kimball. Tbat necessarily involves an election to pursue ber stolen property. She cannot bave both ber property and its proceeds. Before she could have any possible claim against tbe bank she was bound to elect, and if she -elected to follow tbe proceeds of tbe theft in the hands of a third party, she thus ratified Smith’s act in borrowing tbe money from Ferris & Kimball and acknowledged tbe latter’s title. But she lias ■done tbe very reverse of this, and consequently she has no cause of .action against tbe bank. At all events, there is no such thing known to tbe 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 tbat in case of defeat, with regard to one cause of action pleaded against A, be will then (and not until then) bave another and different cause of action against B. Tbat is not a statement of facts constituting a present cause of action against B either at law or in equity. But further, tbe plaintiff has not even pleaded her doubts. In bis brief ber learned counsel says tbat ber right to attack tbe title of Ferris & Kimball to this certificate is a very doubtful question of

p. 486

law. But this expression of doubt is not predicated of any avermeqt in the complaint. Whether the certificate was feloniously or but fraudulently taken, whether it was,'in fact, negotiable or nonnegotiable, whether Ferris & Kimball obtained a good title to it or not, are all matters as to which the complaint evinces no uncertainty.. On the contrary, there is a clear, non-demurrable cause of action (prima facie) stated as against Ferris & 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, be-' affirmed, with costs.

Yan Brunt, P. JT., and Patterson, J., concurred.

Interlocutory judgment affirmed, with costs.