Opinion
March 10, 1916.
Philip A. Rorty, for the appellant.
Graham Witschief, for the respondents.
The action is to recover $266 demurrage charges on thirty-six cars at different times carried by the plaintiff and delivered to the defendant. The charges rest upon the regular tariff of plaintiff on file with the Interstate Commerce Commission, and these charges the plaintiff must by law collect from the defendant. It appears that the plaintiff on its books carried charges as a running account against the defendants, although one of the defendants denies that there was a running account. The defendants moved the Special Term to order an amended complaint, separately stating and numbering the causes of action. The motion was granted and the plaintiff appeals.
The theory of the defendants is that each transaction as to each car constituted a separate cause of action. I think that the plaintiff intended to state but a single cause of action, and that it may be said that it is "fairly doubtful" whether the complaint departs from this purpose. And so the rule of our decision in Pope v. Kelly ( 30 App. Div. 253) may be applied. (See, too, Weed v. First National Bank, 106 App. Div. 285 -287; Baruch v. Young, 149 id. 466, 468.)
I think that the motion should be denied under the authority of Langdon v. New York, L.E. W.R. Co. (15 N.Y. Supp. 255). (See, too, Baruch v. Young, supra; Randall v. Circuit Judge, 96 Mich. 284, 286.) I can even say that within the rule and exceptions stated in Secor v. Sturgis ( 16 N.Y. 548), cited by the learned counsel for the respondents, it may appear that the circumstances are such as to raise an implied contract embracing all the items, to make them, although arising at different times, a single and entire demand or cause of action.
The order is reversed, with $10 costs and disbursements, and the motion is denied, without costs.
THOMAS, CARR and RICH, JJ., concurred; PUTNAM, J., dissented.
Order reversed, with ten dollars costs and disbursements, and motion denied, without costs.