Opinion
June, 1905.
Theodore H. Swift, for the appellant.
John L. Henning and Marcus T. Hun, for the respondents.
This complaint is claimed by the plaintiff to state but one cause of action and that in equity for the reimbursement to the bank of moneys lost through the wrongful acts of the directors. The defendants claim that several causes of action are stated, to wit, a cause of action for negligence or non-feasance, and several causes of action for misfeasance, claiming that a demand for reimbursement for dividends wrongfully paid in each of the several years constitutes a different cause of action.
Under the authorities, we think the order was improperly granted. In O'Brien v. Blaut ( 5 App. Div. 223) an action was brought by the receivers of a bank against several directors for non-feasance and misfeasance, and an order was made compelling the plaintiffs to separately state and number the alleged causes of action. It was held "that the order was improper in that the plaintiffs had been required to separate and separately state and number alleged different causes of action, when their theory of the action was that the complaint stated but a single cause of action.
"That the question, whether the action be maintained upon the plaintiffs' theory of a single cause of action in equity, was not involved in the motion and was a question which could only be raised by demurrer." WILLIAMS, J., in writing for the court, said: "Whether the action could be maintained upon the plaintiffs' theory of a single cause of action in equity was not involved in the motion and need not be determined here. The proper method of raising and determining that question if desired before the trial was by demurrer."
This case has been followed in the case of Pope v. Kelly ( 30 App. Div. 253) where it is held in a somewhat similar case: "When it is fairly doubtful whether the complaint states more than one cause of action and the plaintiff intends to state but a single one, a motion of this character should not be granted but the defendants should be left to their remedy by demurrer."
Plaintiff can hardly be compelled to divide what he claims to be a single cause of action. Defendants' rights are in no way prejudiced by a denial of the motion. If they here claim causes of action to be improperly united, the question can be raised by demurrer whether or not such causes of action be separately stated in the complaint. It would seem to be the policy of the courts, under the authorities cited, to refuse to require the plaintiff to separate in parts what he claims to be a single cause of action. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements.