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Berney v. Drexel, 33 Hun, 34.

26 assignment in the manner stated in the complaint, but that they subsequently disposed of them under such circumstances as will uphold the action against them, assuming the plaintiffs to have been the real owners of the bonds; or to admit proof of any other fact necessary to constitute a conversion. So that the plaintiffs would be entitled, under that allegation, if the bonds still remain in the hands of the defendants, to prove a demand and refusal in order to charge them with a conversion if that proof becomes necessary. Where conversion is alleged as a fact, in general terms, that is sufficient to admit of any evidence on 27 the trial of issue joined that tends to establish such conversion; and the plaintiff is not bound to allege the particular act or acts which constitute conversion in an action of this character. We are of opinion, therefore, that the learned judge at Special Term correctly disposed of the question which arises upon this branch of the demurrer. The question upon which we have the most doubt is as to whether the averment of the laws of France, under which the plaintiffs claim their title, should not have been more precise and formal; but we are inclined to think that the 28 Special Term did not err in holding that, under that averment in the present form, the laws of France could be so proved as to support the allegation of title upon an issue of fact.


Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature of the pleader's claim are sufficient if, under them, upon a trial of the issues, he would be entitled to give all the necessary evidence to establish the claim. We think, therefore, the judgment upon the demurrer should be affirmed, with leave, however, to answer over in the usual time, and on the usual terms as to costs. DANIELS and HAIGHT, J J., concurred.

Judgment affirmed, with leave to answer in twenty days after service of order on the usual terms.

The defendants moved for a re-argument before the General Term.

The General Term held to their former decision and denied the motion.

DAVIS, P. J. [after recapitulating the grounds of demurrer]: The substantial question presented on this motion is whether on

Berney v. Drexel, 33 Hun, 34.

these assignments of grounds of demurrer it can be urged that 30 the demurrants are entitled to judgment on the ground that it appears by the allegations of the complaint that there is a misjoinder of parties plaintiff. This question was not presented on the former argument by counsel, nor was it considered by the court. The allegations of the complaint do show that the title of the cause of action, and the right to maintain the same, are vested in the several plaintiffs other than the plaintiff Louise Berney, who otherwise appears by the complaint to have an interest in the estate of her deceased husband as a beneficiary in trust, if the other plaintiffs recover. The long and short of it is that she is improperly joined as a plaintiff.

Section 488 of the Code of Civil Procedure specifies when a defendant may demur to a complaint and on what grounds. The fifth ground so specified is "that there is a misjoinder of parties plaintiff." Section 490 declares that the demurrer must distinctly specify the objections to the complaint; otherwise, it may be disregarded. And it further provides that an objection taken under the fifth, sixth and seventh subdivisions "must point out specifically the particular defect relied upon."



In order, therefore, to take advantage by demurrer of the misjoinder of Mrs. Berney as a plaintiff in this action, it was necessary that the defendants should not only assign as a ground of demurrer" that there is a misjoinder of the parties plaintiff," but have proceeded to point out that the plaintiff Louise Berney is improperly joined with the other plaintiffs, because she is shown to have no cause of action jointly with them; but that the sole cause of action set forth in the complaint is averred to be in the other plaintiffs exclusive of her. A demurrer with 33 such an assignment and specification would probably have been sustained both at the Special Term and on appeal.

It is insisted, however, that the point can be taken under the general assignment made under the eighth subdivision of the section, to wit," that the complaint does not state facts sufficient to constitute a cause of action," because the complaint shows affirmatively that the cause and right of action are not vested in all the parties plaintiff. There would be greater force in this contention if it were not for the fact that the present Code

Berney v. Drexel, 33 Hun, 34.

34 makes the misjoinder of plaintiffs a special ground of demurrer, and requires that when that objection is taken the demurrant must proceed to "point out specifically the particular defect relied upon." If that had been done in this case the plaintiffs could have amended the complaint by dropping out the name of Mrs. Berney altogether; or by transferring her name, if for any reason it was desirable to continue her as a party, to the rank of defendant. They are deprived of that opportunity if it be held at this stage of the case that the same point may be made under the eighth subdivision of section 488.


Besides, it may be answered that the eighth subdivision of the section does not reach any such defect. It is aimed only at a failure to state any cause of action in the complaint. Where several plaintiffs unite in bringing an action and state in their complaint facts which do constitute a cause of action in favor of one or more, but not of all the plaintiffs, a demurrer based upon an assignment of the eighth ground of the section must be overruled, because the defect is not that the complaint does not state facts sufficient to constitute a cause of action, but that it fails to 36 show that the cause of action thus stated belongs to all the plaintiffs-which is quite another thing and belongs to another subdivision of the section.

Assuming, as we do, that the court did not err in holding that facts sufficient to constitute a cause of action are stated in the complaint, it necessarily follows that a reargument would be quite unavailing to the demurrants and should therefore be denied, with the usual costs of a motion.

BRADY and DANIELS, JJ., concurred.
Motion denied with ten dollars costs.

Whitner v. Perhacs, 25 Abb. N. C., 130.


New York Supreme Court, First District, Special Term, 1890. [Reported in 25 Abb. N. C., 130.]

1. A complaint for damages for false representations, inducing plaintiff to purchase stock in a corporation and to render services to it, states but a single cause of action having two items of damage.

2. In such case the plaintiff will not be required, on motion, to make more definite and certain the allegations as to the items of damage sustained. The remedy is by motion for a bill of particulars.*

Motion by defendant for and order that plaintiff be required 1 to serve an amended complaint wherein she shall set forth and number her alleged cause of action for deceit in the sale of shares of stock, and shall set forth separately in another count, and number the same, her statement of the facts constituting her alleged cause of action for breach of contract to employ plaintiff and for work, labor and services performed by plaintiff; also that the complaint be made more definite and certain by stating the particular nature and grounds of special damages alleged to have been sustained by reason of defendant's misrepresentation.

The action was brought by Mary A. E. Whitner against Emil M. Perhacs. The complaint alleged that plaintiff purchased of defendant certain shares of the stock of a corporation of which defendant was president. That plaintiff was personally unacquainted with the financial condition of such company, and


* Judges have differed in their views as to what lack of information is to be supplied by particulars and what by motion to make more definite and certain. The principle which affords a test is this: If the pleading alleges intelligibly all that is necessary to a good cause of action or a good defence, and satisfies the rules of good pleading; but, by reason of the generality of a proper allegation the adverse party cannot safely prepare for trial without unnecessary labor or 3 expense unless informed of the particulars by proof of which the pleader intends to support his general allegation, the court may properly require the pleader to inform his adversary what those particulars are, and may, on the trial, exclude evidence of particulars not so specified. If, on the other hand, the pleading does not allege intelligibly all that is necessary, but is ambiguous, equivocal or depends for its sufficiency on implication or inferences, then the court may order the pleader to make his allegations more definite and certain. The one remedy amplifies, by convenient specification, what is already well alleged in a general charge. The other substitutes for matter capable of misconstruction an amended statement which is not capable of misconstruction.

In any case where the practitioner is in doubt which is his proper remedy, he may proceed in the alternative, and move for an order that the adversary furnish a bill of particulars, or that he make his pleading more definite and certain.

For the forms, see 2 Abb. New. Pr. & F., 469-485.

Whitner v. Perhacs, 25 Abb. N. C., 130.

4 defendant stated to her that it was doing a very large and profitable business, that the stock was fully paid for, that the indebtedness was only $3,500, that the machinery was owned by it, that its accounts and bills receivable aggregated $13,000, and that plaintiff could draw $30 a week for services she proposed to render in case she should purchase the stock. That such representations were untrue and were made with intent to defraud plaintiff and induce her to purchase the stock. The complaint alleged in detail the falsity of the various representations and stated that plaintiff gave all her time to the business for over a year, and was enabled to draw only $350 in all; that plaintiff has been damaged in the sum of $9,000, etc.



INGRAHAM, J. There is but one cause of action set up in the complaint, that is an action for damages caused by the fraudulent misrepresentations made by defendant. The fact that there are two items of damage, one the amount paid by plaintiff for the stock, and one the value of the services rendered to the corporation, does not make two causes of action. The motion to separately state the causes of action denied. Nor should the plaintiff be required to make the complaint more definite and certain, as to the items of the damage alleged to have been sustained by plaintiff. If information is sought upon that ground, the proper remedy is by a bill of particulars, and not a motion to make the complaint more definite and certain. Motion should therefore

be denied, with $10 costs.

For a good statement by way of counterclaim of a cause of action for deceit, see Rothschild v. Whitman, post, p. 244.

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