Bass v. Comstock

Full title: SAMUEL W. BASS and JOSHUA CLARKE, Respondents, v . JOHN K. COMSTOCK…

Court: Court of Appeals of the State of New York

Date published: Jan 1, 1868

38 N.Y. 21 (N.Y. 1868)

Opinion

January Term, 1868

MASON, J.

The demurrer in this case was properly stricken out and judgment given for the plaintiffs. There is no misjoinder of causes of action. There are two causes of action upon two promissory notes well stated in the complaint, but the accusation against the complaint, as I understand it, is, that these causes of action are not separately stated, as required by section 167 of the Code. This section does declare that the causes of action must be separately stated, but the better opinion seems to be that such causes of action are not improperly united, simply because they are not separately stated by the pleader. ( Dorman v. Kellam, 14 How. Pr. 184; 1 N.Y. Pr. 367; Gooding v. McAlister, 9 How. Pr. 123; Robinson v. Judd, 9 How. 378; Peckham v. Smith, 9 How. Pr. 436.) These cases, and others which might be referred to, hold that a demurrer does not lie to a complaint for not separately stating two or more causes of action, they being such as might be properly united in one complaint, if properly and separately stated, but that the remedy of the defendant is by motion. There are cases which hold that a demurrer for such a defect in the complaint will lie and is the proper remedy. (8 How. 177; 9 id. 198; 4 id. 226, 228; 5 id. 171; 11 id. 27.) These cases hold that several causes of action are improperly united where they are not separately stated, as required by section 167 of the Code. The decided weight of authority in the Supreme Court, however, is the other way, and the better reason is, that, when the causes of action are such as may be united in the complaint, a demurrer will not lie for such a cause.

It must be borne in mind that section 167 allows the causes of action upon these two notes to be joined in the same complaint, but it declares that they must be separately stated. If we turn to section 144, it will be seen that a demurrer can only be interposed for the causes stated in that section, none of which touch this case, unless it is the fifth sub. of that section, and which is, that several causes of action have been improperly united.

That is improperly united in the complaint. This section 144 states, that the defendant may demur to the complaint, when it shall appear, upon the face thereof, that several causes of action have been improperly united. Now, section 167 declares, that these causes of action may properly be united in the same complaint, and the injunction imposed upon the pleader, that such causes of action shall be separately stated, is a rule of pleading, and which has been violated when this is not done, but I am not able to perceive how it can be said that the causes of action have been improperly united in the complaint.

Now, section 144 does not say that a demurrer may be interposed to the complaint where several causes of action, which may be properly joined under section 167, because they are united in one count, and not separately stated. The demurrer is not given for uniting in count separate causes of action, but for uniting in the complaint causes of action, which it is not lawful, under section 167, to unite in the same complaint. It is true, the pleader, in this case, has violated a rule of pleading enjoined by this same section. It does not follow, however, that this demurrer can be maintained. There are other rules of pleading prescribed by the Code, the violation of which will not give the defendant his demurrer.

This view is greatly strengthened by the last paragraph of section 172 of the Code, which make it the duty of the court, where a demurrer to the complaint shall be sustained because of the improper misjoinder of causes of action, to order them to be separated, and that they be proceeded with as separate actions.

I advise the affirmance of the judgment.

CLERKE, J.

No one appears for the defendant who is the appellant in this case. It appears to me, that the demurrer served by the defendant is palpably frivolous.

The complaint, in two several counts, alleges, that the defendant made two promissory notes; on the 14th of May, 1861, to the order of Bass Clark, each in the amount of $403.91. It alleges the presentment of each at the place specified in the notes, the refusal of payment, and notice to the indorser, which was unnecessary, as the action is solely against the maker, and as the indorsers are the plaintiffs. The complaint also states, that the plaintiffs are the owners and holders of these notes, and that no part thereof has been paid.

The defendant demurs, on the ground, first, that several causes of action have been improperly united, and, second, that the complaint does not state facts sufficient to constitute a cause of action. The plaintiffs made a motion for judgment, on the ground that the demurrer was frivolous, which motion was granted, and, on appeal to the General Term, the order was affirmed with costs. The order of the General Term should be affirmed with costs. I think the respondents should be allowed damages under section 307 of the Code of Procedure to the amount of ten per cent.

All affirm.

Judgment affirmed.