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Sheldon v. Lake, 9 Abb. Pr. N. S., 306.


New York Common Pleas, Special Term, 1871.

[Reported in 9 Abb. Pr. N. S., 306.]

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1. A complaint alleging that defendant assaulted the plaintiff, dragged

him violently through the public streets, imprisoned him in the custody of the sheriff, and restrained him of his liberty without probable or reasonable cause, whereby he was wounded, injured in credit, and

hindered in business, states but one cause of action. * 2. Such allegation of the several parts of one continuous transaction are

not irrelevant nor redundant. 3. But an allegation that such acts were in violation of law, not being a

traversable allegation, is irrelevant and redundant, and should be struck out on motion. +

Motion to compel plaintiff to amend his complaint, or to strike 1 out parts.

The allegations of the complaint were as follows:

That on March 23, 1870, at the city of New York, the defendant with force and arms assaulted the plaintiff and with great force and violence, pulled and dragged about the said plaintiff, and also, then and there forced and compelled the said plaintiff to go from a certain place in said city into the public

2 streets thereof, and then and there, forced and compelled him to go in and along divers public streets in said city, and then and there imprisoned the said plaintiff, and put him in the custody of the sheriff of the county of New York, and detained him for the period of several days in said custody, and restrained and deprived the said plaintiff of his liberty without any reasonable or probable cause whatsoever.

And said plaintiff further says, that all of the said malicious acts aforesaid were contrary to the laws and customs of this 3

* A complaint alleging that defendant led plaintiff into making a hard and unconscionable lease, and then, after plaintiff had sown crops, etc., turned him off, and procured his arrest on a malicious charge of embezzlement, and took possession of his household goods, etc., and that all these acts were in pursuance of defendant's plan to defrand plaintiff, states but one cause of action. In such a case it is not necessary to allege termination of the prosecution complained of as malicious. In this respect the action is for abuse of process. Bebinger v. Sweet, 1 Abb. N. C., 263.

+ It is doubtful whether now a motion merely to strike out a conclusion of law would be sugtained, it is so well settled that it is not admitted by failing to deny it.

Sheldon v. Lake, 9 Abb. Pr. N. S., 306.

4 state, and in violation of the same, and against the will of the

said plaintiff, whereby the said plaintiff was not only greatly hurt, bruised, and wounded, but was also thereby then and there greatly exposed and injured in his credit and circumstances, and was then and there hindered and prevented from performing and transacting his affairs and business, by means whereby, said plaintiff says he has sustained damages to the amount of ten thousand dollars.

WHEREFORE, etc. 5 The defendant moved to strike out parts of the complaint,

especially those indicated above by italics, as irrelevant and redundant; or, if more than one cause of action was intended to be set up, that the complaint be made more definite and certain, and the causes of action be separately stated, and distinctly numbered.

It was conceded by the plaintiff's attorney, on the motion, that the action was for false imprisonment, and that alone.

ROBINSON, J. The motion to strike out parts of the complaint 6 as irrelevant and redundant is denied, except the sentence hereafter quoted.

The several statements of the plaintiffs as to the acts complained of, have relation to but one continuous transaction, alleged with special circumstances of injury or aggravation as to each step in the progress of the affair, and they constitute a single cause of action for injury to the person, with or without force, in the several occurrences related in the pleading.

They do not constitute separate causes of action. The plaintiff could not sue and recover for the assault first alleged, as for the 7

act of dragging him through the streets, or for the false imprisonment lastly alleged, and again maintain another action for any of the other matters attending his arrest and imprisonment. (Farrington v. Payne, 15 Johns., 432; Fetter v. Beale, 1 Salk., 11.)

The Code of Procedure permits the joinder of separate causes of action for injuries, with or without force, to the person ($ 167, subd. 3); and the court could consolidate such actions as might have been originally joined; but such power is in no way decisive as to the entirety of causes of action, if separately and indepen

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Sheldon v. Lake, 9 Abb. Pr. N. S., 306.

dently stated, and occurring on different occasions, or as to what 8 might constitute different causes of action. To allow the uniting in one statement, of a cause of action, consisting of different trespasses (where they all substantially arose out of the same act), such as the statement of an assault, an assault and battery and false imprisonment, does not prejudice the defendant, since he may in his answer confess, deny or justify each separate act; while to regard them as separate causes of action and subjects of different suits, would be allowing an unwarrantable splitting up of controversies.

9 The several subjects of complaint having reference to an entire, although continuous transaction, their joinder as one is properly allowed without charge of irrelevancy or redundancy.

The case disclosed by the complaint is one of injury to the person, and prima facie actionable.

The allegation that such acts are “contrary to the laws of the state, and in violation of the same (contra pacem regis)," was, under the old system of pleading, regarded as mere matter of form, and not traversable (1 Chitty Pl., 422; Gardner v. Thomas, 14 Johns., 134). It is equally so under the Code, as a mere mat- 10 ter of form, or conclusion of law, and is not necessary or proper to be stated. The rights of the parties are to be judged solely by the facts stated ; and the allegations last above quoted ought to be stricken out as irrelevant and redundant.

No costs are allowed.
Order accordingly.

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Rothschild v. Whitman, 132 N. Y., 472.


New York Court of Appeals, 1892.

[Reported in 132 N. Y., 472.] 1. In an action for malicious prosecution or false imprisonment, the claim

upon which such previous prosecution was founded is not a proper

counterclaim. 2. The complaint was for a malicious action and arrest on an order therein,

which order it was alleged was vacated as illegal and without jurisdiction. The answer set up as a counterclaim that plaintiff, as manager of a firm, by deceit induced defendants to sell the firm goods on credit, and secretly shipped them away and disposed of them, to defendant's damage, some months before the suit for malicious prosecution ; and that this constituted part of the grounds for the order of arrest, which was vacated not because the allegations on which it was granted were untrue, but because of a misjoinder of causes of action. Held, that the claim for damages for deceit (though the inducement to the action and arrest), arose out of neither, but existed independently of both; that it was not the cause, but rather the reason or pretext of the action and arrest ; so that the claim and counterclaim did not arise out of the same transaction.

1 An action for malicious prosecution.

The complaint was as follows:

I. That, on or about September 1st, 1887, the plaintiff was engaged in business in the city of New York, county and State of New York, as manager of the dry goods business of Maier Rothschild, and was, on or about said date, conducting the said business as manager.

II. That, on or about said date, the defendants not having any just or probable cause of action against the plaintiff, did then and 2 there wrongfully and maliciously begin an action against the

plaintiff, and did cause to be issued out of the Supreme Court of the State of New York, in and for said county, a certain alleged order of arrest in an action in which the defendants were plaintiffs, and placed the same in the hands of the sheriff of the city and county of New York for service, and did thereupon cause the plaintiff to be taken into custody by the said sheriff thereunder, and held to bail in the sum of ten thousand dollars, and that plaintiff was kept in custody under said pretended order of

Rothschild v. Whitman, 132 N. Y., 472.

arrest by the said sheriff for about a week, and was compelled to, 3 and did, disburse large sums of money, aggregating one thousand dollars, in and about said arrest, and to counsel ; and that plaintiff, by reason of said arrest, was compelled to give up said business, and was greatly injured in his good name and credit among merchants in the city of New York, and elsewhere, and among his friends and acquaintances, and suffered greatly in body and mind by reason of the disgrace attendant thereon.

III. That thereafter, and upon the motion of this plaintiff, the said alleged order of arrest was duly vacated by said Supreme

4 Court, and upon the ground that the same was illegal, unauthorized, and that the court had not jurisdiction to grant the same, and an order was duly entered thereon, on or about the 29th day of December, 1887, and defendant discharged thereunder, and that said proceeding has been wholly and finally terminated in favor of the plaintiff and against the said defendants by final order of said court.

IV. That by reason of the premises plaintiff suffered damages in the sum of fifty thousand dollars.

5 WHEREFORE, plaintiff demands judgment against the defendants for his damages aforesaid, in the sum of fifty thousand dollars, with interest thereon from said date, besides the costs of the action.


The answer contained denials, and, for a further defence and by way of counterclaim, alleged :

VI. That the defendants, at the times hereinafter mentioned, were copartners, doing business under the firm name of Whitman, Creighton & Co.

VII. That the plaintiff, Abraham Rothschild, was connected in business with the copartnership of C. M. Rothschild & Co. prior to the 28th day of September, 1887, and during the year 1886, the said C. M. Rothschild & Co. being a partnership under the name of Charles M. Rothschild and Jacob M. Rothschild, doing business at No. 40 White street, in the city of New York, and that the said Abraham Rothschild was actual manager of the business of said firm.

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