Blanchard v. Jefferson, 28 Abb. N. C., 236.

2 co-partnership and that it was agreed between the defendant and plaintiff's testator that such balance should remain on deposit in the business and as a loan to the defendant at the legal rate of interest.

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The complaint further alleged that thereafter the plaintiff's testator was employed by the defendant at a salary of $3,000 per annum, and that from time to time various amounts were paid to plaintiff's testator on account of said salary and on account of his said deposit until 1887, since which time no payments have been made, and that there is due for and on account of said deposit and said loan the sum of $16,845.06.

Defendant moved the court below to make the complaint more definite and certain by separately stating and numbering the facts constituting each cause of action set forth in the complaint, and the court made an order requiring the plaintiffs to make the complaint more definite and certain by separately stating and numbering the facts constituting each cause of action set forth in said complaint, and alleging and stating the amount paid by the defendant for and on account of each cause of action and the amount claimed by the plaintiffs for and by reason of each cause of action alleged in said complaint.

O'BRIEN, J. [stating the facts as above]. The question presented upon this appeal is necessarily dependent upon one or the other of two views we may take as to whether the complaint states one or two causes of action.

If the appellant's contention is correct, that but one cause of action is set forth, namely, an action for an accounting, then the order appealed from should not have been made.

We do not think, however, that the complaint can be so construed. It seems to us that the complaint contains two causes of action, one for an alleged balance claimed to be due upon the dissolution of the co-partnership, which was deposited with the defendant as a loan, and the other for salary claimed to be due said plaintiff's testator on a contract of employment after the dissolution of the co-partnership.

These two causes of action are independent, distinct and separable. They did not arise out of the same contract or trans

Blanchard v. Jefferson, 28 Abb. N. C., 236.

action, but each arose out of separate, distinct and independent 6 acts and contracts.

One cause of action is purely for money loaned, and the other for salary under a contract of employment.

If our construction of the complaint is right, it would follow, under section 483 of the Code, that the facts constituting each cause of action should be separately stated and numbered. So much, therefore, of the order as requires this should be affirmed.

But the remainder of the order, which requires that the complaint should allege and state the amount paid by the defendant for and on account of each cause of action, and the amount claimed by the plaintiff for and by reason of each cause of action alleged in said complaint, should be reversed for the reason that it is entirely competent, after stating two separate and distinct causes of action, for the plaintiff to allege that there was paid thereon from time to time an amount which can be specified, and that there is a balance due thereon as claimed in the complaint.

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That this form of pleading is correct is shown by the facts appearing that the amounts due upon these two several causes of action were from time to time lessened by payments made 8 thereon which were not appropriated by either the debtor or creditor to either claim in particular; so that it would be impossible for the plaintiff to state just what amounts were paid on one or the other of these claims.

It would appear that the credit was given the plaintiff by the defendant for the amount of both claims, and from time to time as moneys were paid they were debited against the credit thus created and the balance held as the amount due plaintiff upon both claims.

The order appealed from should be modified accordingly, without costs to either party on this appeal.

VAN BRUNT, P. J., and PATTERSON, J., concurred.

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Difference between an Action on an Account and for an Accounting.

NOTE ON THE DIFFERENCE BETWEEN AN ACTION ON AN ACCOUNT AND FOR AN ACCOUNTING.

1 An action on an account stated, or for a debt resting in account, is quite different from an action for an accounting. The latter is appropriate where defendant stands in a relation or under a contract which imposes upon him the affirmative duty of rendering an account, and substantiating its items. The burden is on plaintiff to prove that defendant is under a duty to account. This is to be done at the hearing, and if the duty is made out an interlocutory judgment requiring defendant to perform this duty is awarded, and the cause then proceeds, usually before a referee, to have the account taken and stated, and in this part of the case the burden is on defendant to render and support the account, as it has been adjudged to be his duty to do. Such a cause of action is appropriate for a bill in 2 equity, and, under the Code, for an action of an equitable nature, and in such action an arrest may be granted by the court if defendant threatens to leave, etc., and thus render the desired interlocutory judgment fruitless (Code Civ. Pro., § 550). And interlocutory judgment may usually be enforced by proceedings for contempt (§ 1242).

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An action upon an account stated (see Graham v. Camman, p. 91 of this vol.), or for a debt resting in account (see Ensign v. Nelson, p. 287 of this vol.), is an action on a common law cause of action in which the burden is on the plaintiff to prove not only his right to recover, but the amount also; and the cases in which equity has jurisdiction are only those where the account is so complex that a jury is not a fit tribunal to try the cause; and even then, under our statutes allowing a reference of such causes, it is discretionary for a court of equity to decline to exercise its concurrent jurisdiction and leave the plaintiff to an action of a common

law nature.

This very sensible decision accords in principle with other recent decisions that facts which are matter of inducement to each of several causes of action, such as the incorporation of a party, or the legal capacity of a party executor, etc., may be stated in a preliminary or introductory part of the complaint, before the "separate statement" of each cause of action, and without being repeated in them. The rule that each cause of action must be stated so as to be complete in itself, either by embodying all the necessary facts, or by express reference to a preceding cause of action in which they are stated, I understand to be a rule of judicial convenience founded on the fact that otherwise the striking out of one cause of action by motion or its withdrawal might leave a complaint insufficient on its face. But such results cannot follow where the facts common to several causes of action are stated once for all, either, as in the case of capacity of parties, in the beginning of the complaint, and before commencing the statement of the first cause of action, or, as in case of unappropriated payments, stated at the end of the complaint after the close of the last cause of action, as in the text. It is upon the same principle that one demand of relief suffices for several causes of action.

People v. Tweed, 63 N. Y., 194.

PEOPLE v. TWEED.

New York Court of Appeals, 1875.

[Reported in 63 N. Y., 194.]

1. In an action to recover from defendant moneys which he and others acting as public officers had peculated from a city treasury by neglect to audit, and by auditing and allowing exaggerated and excessive claims, defendant is not entitled as matter of right to a bill of particulars showing what part of each claim is alleged to be excessive and fraudulent; but the question whether particulars should be furnished is in the discretion of the court, and its order therefore will not be reviewed in the Court of Appeals.

2. If defendant, on moving to correct the plaintiff's complaint, takes an extension of time to answer or demur, until a specified period after the amended complaint sought for shall have been served, and, on an appeal from an order granting this relief, he obtains no stay of pro ceedings or other extension, his extension falls with the reversal of the order by the General Term; and if the time to answer or demur has then expired, he is in default.

3. The General Term on reversing the order may impose such terms respecting leave to answer or demur as it may deem proper.

4. In a complaint to recover from defendant moneys peculated by conspiracy between himself and others, obtaining payment of unaudited claims or excessive claims fraudulently audited, allegations of negligence and of fraud are not separate causes of action, but only a statement of various means by which the conspiracy was carried out. 5. In such case the various claims or payments are not separate causes of action, but they may all be regarded as a series of acts in connection with the general conspiracy alleged. So held, even though only one of the alleged conspirators was made defendant, and although the various acts might have been treated as separate offenses on an indictment in a criminal action.

6. In such a case the city from whose treasury the moneys have been embezzled had been joined as a co-defendant, upon a mere general allegation that it had or claimed some interest in the demand sued on. Held, that the principal defendant had no right to require this general allegation to be made more definite and certain.

The people of the State brought an action against William M. 1 Tweed and others to recover moneys which he, in confederation with others as officers of the city and county of New York, had peculated from the city treasury; and the action was held not maintainable because the people were not the proper plaintiffs. (People v. Ingersoll, 58 N. Y., 1.)

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People v. Tweed, 63 N. Y., 194.

The Legislature then passed an act (L. 1875, p. 43, c. 49), known as the Peculation Act, or Tilden Act, and which has been since then embodied in Code Civ. Pro., §§ 1969, 1971, etc. (and the right to arrest and attachment in which was secured by $$ 637 and 549, sub. 3, respectively).

Under that act of 1875, the people brought this second action against Tweed for the same cause, seeking to recover upwards of six millions of dollars; and joined the city as a co-defendant.

The nature of the complaint appears in the above head-notes; it closed with this allegation, "That the said defendants, 'The Mayor, Aldermen and Commonalty of the City of New York,' set up and pretend to some right or interest in the premises."

Annexed to the complaint were schedules of numerous warrants paid, and of the claims alleged to have been unaudited or fraudulently audited.

Defendant made several successive motions, which were, however, heard together as one-seeking a bill of particulars of what parts of the accounts and claims were claimed to be false, fictitious or fraudulent; also to have the complaint made more definite and certain as to what right or interest the city claimed; also to have it made more definite and certain whether every claim mentioned was fraudulent, and in what respect, and whether wholly so or in respect to an excess, and if the latter, what part; also to set aside the complaint because several causes of action were not separately stated and numbered; also to strike out as irrelevant and redundant parts relating to the alleged neglect to audit, and parts alleging any conspiracy; also to compel plaintiffs to elect which of the 151 claims they would proceed for, and to strike out the others; also to compel them to elect whether to proceed for neglect to audit, or for fraudulent auditing.

After the argument of the motions, and before the decision, plaintiffs' attorney gave defendant the following stipulation: "It is hereby consented that the time for the defendant Tweed to answer, demur or take any other action which he may be advised is extended until five days after the entry and notice of an order upon the motions argued before Mr. Justice Donohue, on June 1, 1875."