Summary
In Pope v. Kelly (30 App. Div. 253) we find the following: "So we say that when the matter 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 left to their remedy by demurrer."
Summary of this case from Bob v. HecksherOpinion
May Term, 1898.
James D. Fessenden, for the appellants.
George W. Wingate, for the respondents.
The plaintiffs insist that they have but a single cause of action to reform a written agreement between the parties, and specifically perform that agreement as reformed. To effectuate the agreement it is necessary that the corporation, of which the parties are the directors and stockholders, should act. The corporation is alleged to be under the control of the individual defendants. It is neither necessary nor proper on a motion of this character to determine whether in law the action can be maintained and the plaintiffs obtain the relief which they seek against the several parties. If it cannot be, or if in reality there are several distinct causes of action against the different defendants, the defendants' remedy is by demurrer, of which the failure to separately number the causes of action in no manner deprives the defendants. The plaintiffs are entitled to maintain their theory, whether right or wrong, until the question is decided by demurrer or a trial. We think the same rule should apply in a case of this kind as that which obtains on motions to strike irrelevant matter from pleadings. "Where matter alleged to be irrelevant is not obviously so, but requires an elaborate argument to show its irrelevancy, a motion to strike out will be denied." ( Gaylord v. Beardsley, 25 N.Y. Supp. 598.) So we say that when the matter 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 left to their remedy by demurrer. ( O'Brien v. Blaut, 5 App. Div. 223.)
The order appealed from should be affirmed, with ten dollars costs and disbursements.
All concurred.
Order affirmed, with ten dollars costs and disbursements.