Henderson v. Jackson

9 Abb. Pr. 293, 40 How. Pr. 168

• Court: The Superior Court of New York City
• Decided: March 15, 1870
• Status: Published

Opinions

By the Court.

*—Monell, J.

The facts stated in the complaint, if separated, are sufficient to constitute two causes of action.

The facts first stated, constitute a cause of action for a false imprisonment; and those secondly stated, constitute a cause of action for a malicious prosecution.

But the facts thus first and secondly stated are so blended and run into each other as to constitute the narration of an entire transaction, commencing with an illegal arrest, followed by a false and malicious charge, and concluded by a further imprisonment.

The damages sought to be recovered are for a false imprisonment, as well as for malicious prosecution.

No opinion appears to have been written at special term, and it is not, therefore, known whether the decision was placed on the ground that there was no misjoinder of actions, or that the remedy by demurrer was not appropriate. A demurrer is, of course, a proper remedy where two causes of action are improperly united, and we should be called upon, perhaps, to examine and determine the question of the alleged misjoinder of actions in this case if the pleading was in a form properly to raise it.

It has always, under our present system of pleading, been a veccata questio, whether facts should be stated according to their legal effect, or as they actually occurred or existed. The pleader in this case has followed the latter course, and given a connected narration of facts, which he claims constitutes the cause of action.

In abolishing all forms of pleading, the Code did not quite leave the pleader to exercise his own judgment as to the manner of framing his pleading. The Code requires that it shall contain a 61 plain and concise statement of facts.” If two causes of action are united, they must be separately stated (Code, § 167); and by rule of court must be plainly numbered (Rule 19).

These, regulations are not exclusively for the convenience of parties, or to merely furnish them with information concerning the action or defense. They are also for the convenience of the court, to assist it in the examination of the questions to be decided ; and the court has the right, I think, to require that the provisions of the Code, and of then rules, should be complied with by attorneys, before it is called upon to determine any question in controversy. For this purpose the_ Code has provided that irrelevant or redundant matter in a pleading may be stricken out on motion, and indefinite or uncertain allegations may be required to be made more definite and certain.

Without, therefore, looking into the question raised by the demurrer in this case whether a cause of action for false imprisonment and also for. malicious prosecution can be united, it is enough to say that until the complaint is made to conform to the requirements of the Code and rules of court, we will not take upon ourselves the labor of ascertaining whether two causes of action are in fact stated in the complaint. That question must be determined before we are authorized to say there is a misjoinder, and there should not be left any room for doubt on that subject. Therefore, as a preliminary, and to enable the question of misjoinder to be made certain, a motion should be made to require the causes of action to be separated and numbered. If any matter in the statements of facts is irrelevant or redundant, a motion should be made to strike it out. If it is indefinite or uncertain, it should amended definitely and certainly.

These, it seems to me, are the appropriate remedies for this case, and until they are resorted to, and the causes of action are so definitely and clearly stated in the manner prescribed that the court can at once see that there are two distinct causes of action, a demurrer is not proper, or if a proper, not the only remedy.

The weight of decision is in favor of this view, notwithstanding the very pointed case of Anderson v. Hill (53 Barb., 238) of which, however, it may be said that the question of the appropriateness of the remedy is not discussed or alluded to in the opinion, although the objection was distinctly taken on the argument of the case.

The cases in opposition are Blanchard v. Strait (8 How. Pr., 83; Wood v. Anthony, 9 Id., 78; Lord v. Vreeland, 13 Abb. Pr., 195, and Cheney v. Fiske, 22 How. Pr., 236). This last case, very singularly, is a general term decision, made in 1860, of the supreme court of the same district that made the decision in Anderson v. Hill, supra, but is not referred to in the opinion in the latter case. In Cheney v. Fiske, the court says: “If a single count or statement of a cause of action, or one that professes to be that, is found upon examination to contain more than one cause of action, it is not demurrable, although the two causes, if stated separately, might not be united in one action, but "in such a case the remedy is by motion.” This case decides the precise question raised in Anderson v. ' Hill, but not passed upon, directly at least, in that case.

As we are not informed of the views of the learned judge who decided this demurrer, we have the right to assume it was in accordance with ours, and that he held the demurrer not to be the proper remedy.

The order appealed from should be affirmed, with costs.

Present, Monell, Ch. J., and Jones and McCunn, JJ.