20 Krower v. Reynolds, 99 N. Y., 245. 19 jurisdiction, against Shaw, Reynolds and others by process duly issued and served on the defendants therein, in which action judgment was duly recovered by the plaintiff against Reynolds on the 26th day of October, 1877, for $5,053.78, on his liability on his covenant, the death of Oudkirk and the appointment of the plaintiffs as his executors. The complaint concludes by demanding judgment against Reynolds for $5,053.78, with interest from October 26th, 1877, the date of the judgment. It is to be observed that upon the facts stated in the complaint, the covenant was merged in the judgment and no subsequent action on the covenant could be sustained. This consideration is not decisive upon the point in controversy, because a plaintiff may join in his complaint different and even inconsistent causes of action, provided only that they all belong to one of the classes mentioned in section 484 of the Code. But the fact that an action on the covenant could not be maintained after a judgment had once been rendered thereon has a material bearing upon the construction of the pleading. The pleader has blended in a single statement the averments of the making of the covenant 21 and the subsequent recovery of a valid judgment thereon. Did lie intend to set forth in this single statement two inconsistent causes of action, or only one cause of action, that is to say, a cause of action on the judgment, inserting the allegations as to the bond and mortgage, and the assumption of the debt by the defendant and his covenant to pay the mortgage, only by way of introduction or inducement to the final fact, viz., the recovery of the judgment? This latter seems the most natural and reasonable construction of the pleading. There is another material consideration. The complaint does not contain the averments necessary to a complete cause of action on the covenant. It alleges the making and the consideration of the covenant, and that the defendant thereby became liable to pay the mortgage. But there is no breach alleged. This was necessary. (Marie v. Garrison, 83. N. Y., 23.) There is no averment that the mortgage had not been paid or that Reynolds had failed to perform his covenant. If the averments in respect to the judgment should be eliminated, the complaint would have been demurrable, as not stating facts sufficient to constitute a cause of action. If 22 Krower v. Reynolds, 99 N. Y., 245. the parties had gone to trial on a complaint so framed, an amend- 23 ment would doubtless have been allowed, but the point here is whether allegations proper, if not necessary, to a cause of action on the judgment, by way of inducement, are to be construed as intended to set up an independent cause of action, and this when a material averment to such cause of action is wanting. The answer of the defendant admitted the facts alleged in the complaint as to the making of the covenant, but denied the judgment and set up certain facts by way of equitable defence thereto. On the trial the plaintiffs made no attempt to prove the judgment alleged in the complaint, but rested on proof of their appointment as executors. The defendant thereupon moved for a nonsuit on the ground that the plaintiffs had not proved the cause of action set forth in the complaint. We think the motion should have been granted. We fully approve of the rule that pleadings should be liberally construed, with a view to promote substantial justice, but we are of opinion that the complaint in this case, fairly construed, sets forth a single cause of action upon the judgment and does not embrace a cause of action on the covenant. The judgment should be reversed and a new trial granted. Judgment reversed. NOTE. The short form allowed by Code Civ. Pro., § 532, of alleging judgments and determinations of courts and officers of special and limited jurisdiction to be alleged as "duly given or made," is applicable to alleging a judgment or other determination of a Federal court or officer when pleaded in a state court. It is the better opinion that such provision is also applicable to judgments and other determinations of courts or officers of sister states. (Abb. Br. on Pl., §§ 279, 285, and cas. cit.) Where the court rendering the judgment is one of general jurisdiction, the facts showing jurisdiction need not be alleged. This was the rule at common law, and has not been changed in the Code. Chitt. Pl., 414. (Id., §§ 277, 278; 2 24 25 26 1 2 Everitt v. Conklin, 90 N. Y., 645. EVERITT v. CONKLIN. New York Court of Appeals, October, 1882. [Memorandum in 90 N. Y., 645.] 1. A complaint stating the details of the circumstances under which the plaintiff paid money to defendant's use, is not bad because of stating those circumstances so as to present an alternative as to the legal theory of the transaction, if on either alternative defendant is bound ex aequo et bono to return the money. 2. The complaint showed that plaintiff's assignor made a note for defendant's accommodation and afterward paid it, and alleged that even if it should be found (as defendant might claim) that the note was applied on a contract between the parties, yet the contract was meanwhile duly rescinded, and therefore plaintiff was still entitled to recover the money. Held, a proper mode of pleading the alternative grounds of recovery. 3. In such a case it is not error to refuse to require the plaintiff at the trial to elect upon which theory he would proceed. Plaintiff sued defendant in a county court, and alleged: I. That the defendant is a resident of the county of Chemung. II.-Upon information and belief, that on or about Nov. 8th, 1876, one John G. Copley and the defendant entered into an agreement in writing [of which a copy was here set forth, by which agreement Conklin sold a farm to Copley, at a stipulated price per acre, amount to be fixed after survey, and $10,000 payable in three months from the date of the agreement, $10,000 more about a year after, and the balance still later; the parties agreeing "that upon the payment of the first $10,000" the deed should be given. III. That after the execution of said contract and before any payment was due thereunder, to wit, on or about the 19th day of December, 1876, the said John G. Copley executed and delivered to the defendant his promissory note in writing, dated on that day, whereby he promised to pay to the order of James R. Conklin, the defendant, five hundred dollars, three months after date, with interest. That said note was so executed and delivered by the said John G. Copley to the defendant, at the defendant's request, for the purpose of enabling the defendant 3 to discount the same and raise money thereon for his own use. That at the time of the execution of said note, said Copley was not and never since has been indebted to the defendant in any sum whatever, and said Copley never received anything for said note. That said note was so executed and delivered solely as an accommodation note, but it was agreed that the amount thereof, with accrued interest, might be deducted by said Copley from the said sum of ten thousand dollars, which was to fall due from said Copley to defendant upon said contract three months from its date, if said Copley chose so to do. That soon after the execution and delivery of said note and before its maturity the defendant endorsed said note and transferred the same to Lewis M. Smith and Henry L. Bacon, who thereupon became the lawful owners and holders thereof. 4 That said note was not paid at its maturity, but was protested for non-payment, and notice thereof duly given to the defendant. [The complaint then alleged at some length the fact that judgment was recovered by the indorsees against the maker under an arrangement with the payee, indorser, that the judgment should be 5 collected of the maker if possible, and, if not, the indorser would pay it with the costs and expenses; that after execution returned unsatisfied against the maker supplementary proceedings were had against him, and he subsequently paid the judgment and interest, and the costs of the supplementary proceedings amounting in all to the sum of $578.98.] IV. That the said John G. Copley was ready and willing to perform the conditions of said written contract hereinbefore set forth, on his part, three months from the date thereof, when by the terms of said contract the defendant was to execute and deliver the deed as in said contract provided; and the said Copley to pay the said defendant ten thousand dollars, and to execute and deliver to the defendant a bond and mortgage for the balance of the purchase price of said farm; but the defendant did not perform on his part, and was unable to convey to said Copley the fee simple of said farm, free and clear from all incumbrances of every description, as by said contract he had agreed to to, and that at the time when, by the terms of said ccn 6 Everitt v. Conklin, 90 N. Y., 645. 7 tract, said deed was to be delivered and said farm so conveyed to said Copley, said farm was, and ever since has been, incumbered with [here the incumbrances were described in detail and the complaint continued], and by reason of such incumbrances the said John G. Copley rescinded said contract, and demanded that the defendant pay said note and the judgment which was recovered thereon as hereinbefore stated, and at the time when said Copley paid said judgment and costs, as herein before alleged, the said defendant was present, and the said Copley stated to him that the same was for defendant to pay, and that he paid it because he was compelled so to do, and that he should make the defendant repay the same to him; and that the defendant repeatedly requested said Copley to pay the same. That said Copley demanded of the defendant that he repay to him the sum so paid out; but the defendant refused so to do. 8 9 10 V. That shortly after the execution of the said agreement between said John G. Copley and James R. Conklin, the defendant, and on or about December 30th, 1876, said Copley, at the defendant's request, and on his written order, paid Whitfield Farnham, the surveyor, who surveyed the said farm, for his services in making such survey the sum of ten dollars. VI. That by reason of the matters herein before alleged, the defendant became indebted to said John G. Copley in the sum of $588.98, no part of which has ever been paid. VII. That before the commencement of this action the said John G. Copley, duly sold, assigned and transferred to this plaintiff the said indebtedness of the defendant to him, and all of his right of action against the defendant arising therefrom and growing out of the matters aforesaid, and this plaintiff is now the lawful owner thereof. WHEREFORE, etc. At the trial in the County Court the plaintiff had a verdict; and defendant moved for a new trial. DEXTER, J., County Judge, on denying the motion, said, in respect to the question of pleading: If it be assumed that the complaint sets forth two causes of |