Harsen v. Bayaud — 12 N.Y. Super. Ct. 656

Majority

p. 656

Harsen v. Bayaud.

Headnote

A complaint containing several causes of action, all of which belong to one of the classes named in section 16*7 of the Code, and affect all of the parties to the action, and do not require separate places of trial, cannot be demurred to, on the ground that such causes of action are improperly united, merely because they are not separately stated. In such a case the remedy is a motion, that the complaint be made more definite and certain, so as to show on its face, clearly and precisely, what distinct part of it is relied upon as constituting a separate cause of action.

At Special Term,

April 6, 1856.

This action comes before the court, on a demurrer to the com plaint, assigning as causes of demurrer, that several causes of action are improperly united, and that they are not separately stated.

The court was of opinion, that all the causes of action belonged to one of the classes mentioned in section 167 of the Code, and did not require separate places of trial. The question most discussed was, whether they were improperly united, within the meaning of those words, as used in sub. 5 of section 144.

J. Larocque, for defendant.

J. K. Platt, for plaintiff.

held, that several causes of action are not im properly united, within the meaning of those words, as used in sub. 5 of section 144 of the Code, if they all belong to one of the

p. 657

classes mentioned in section 167, and affect all the parties to the action, and do not require separate places of trial, although they may not be separately stated. The requirement of sub. 7 of section 167, that they “be separately stated,” is not a fact or condition that must exist, to prevent a demurrer being taken on the mere ground that they are improperly united. That provision relates solely to the form of the complaint. If the complaint be defective in that particular, the remedy is a motion that it be made more definite and certain, so as to show what part of it is relied upon as stating facts constituting a distinct cause of action.

The words “improperly united,” as used in sub. 5 of section 144, refer to the nature of the causes of action united, and not to the form of stating the facts which constitute them. They are properly united, however unartificially they may be stated, if they all belong to a specified class, and affect all the parties to the action, and do not require separate places of trial. Judgment must be ordered for the plaintiff, with liberty to the defendant to answer, in ten days, on payment of the costs of the demurrer.