POPE v. KELLY

Appellate Division of the Supreme Court of New York

POPE v. KELLY

51 N.Y.S. 557

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 7, 1898

StatusPublished

This text of 51 N.Y.S. 557 (POPE v. KELLY) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

POPE v. KELLY, 51 N.Y.S. 557 (N.Y. Ct. App. 1898).

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Opinion

PER CURIAM.

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 he 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 plaintiffs’ remedy is by demurrer, of which the failure to separately number the causes of action.in no maimer 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 would be denied.” Gaylord v. Beardsley (Sup.) 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, 39 N. Y. Supp. 218.

The order appealed from should be affirmed, with $10 costs and disbursements.

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PER CURIAM.

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 he 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 plaintiffs’ remedy is by demurrer, of which the failure to separately number the causes of action.in no maimer 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 would be denied.” Gaylord v. Beardsley (Sup.) 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, 39 N. Y. Supp. 218.

The order appealed from should be affirmed, with $10 costs and disbursements.

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51 N.Y.S. 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-kelly-nyappdiv-1898.

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