Opinion
February 23, 1912.
Michael Schneiderman [ Gino C. Speranza with him on the brief], for the appellant.
Martin A. Schenck, for the respondents.
The plaintiff appeals from an order of the Special Term denying his motion for judgment on the pleadings, under section 547 of the Code of Civil Procedure. The action was brought to recover damages for the death of the plaintiff's intestate through the alleged negligence of the defendants, the Litchfield Construction Company and the Richmond Light and Railroad Company. The facts alleged in the complaint show that the decedent was an employee of the defendant Litchfield Construction Company, and met his death through a charge of electric current which came from the wires of the defendant Richmond Light and Railroad Company into a derrick operated by the defendant Litchfield Construction Company, and about which the decedent was at work. The complaint was framed very inartistically. It attempted to set forth three causes of action, each numbered separately, two of which were set up against the defendant the Litchfield Construction Company, and one of which was set up against the defendant the Richmond Light and Railroad Company. The defendant the Richmond Light and Railroad Company demurred to the complaint on the ground that it appeared on the face thereof "that causes of action have been improperly united in that the causes of action set forth do not affect all the parties to the action."
The plaintiff moved for judgment on the pleadings, on the ground that the demurrer was insufficient. The learned Special Term denied his motion for judgment, and made an order sustaining the demurrer with taxable costs. While the plaintiff in form appears to have attempted to state separate causes of action against each of the respective defendants, yet the facts set forth in the complaint state only one cause of action, and that against both defendants as joint tort feasors. ( Lynch v. Elektron Mfg. Co., 94 App. Div. 408.)
In determining the sufficiency of a pleading the court is not bound by the inartistic form adopted by the pleader, provided the substance of the allegations meets the general requirements of pleading. Under these circumstances, as there was actually but one cause of action pleaded, the demurrer to the complaint was not well taken, and the order sustaining said demurrer was erroneous. The order of the Special Term should be reversed, with ten dollars costs and disbursements, and the motion for judgment on the pleadings should be granted, with ten dollars costs, with leave to the defendant demurrant to apply at Special Term for leave to withdraw the demurrer and to answer the complaint within twenty days.
JENKS, P.J., THOMAS and WOODWARD, JJ., concurred; BURR, J., not voting.
Order of the Special Term reversed, with ten dollars costs and disbursements, and motion for judgment on the pleadings granted, with ten dollars costs, with leave to defendant demurrant to apply at Special Term for leave to withdraw the demurrer and to answer the complaint within twenty days.