§ 140. (Am'd 1849, 1852.) Forms of pleading.

All the forms of pleading heretofore existing are abolished; and, hereafter, the forms of pleading in civil actions in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, are those prescribed by this act.

a. How far rules dehors the code apply.-All forms and rules of pleading are abolished, and the rules for testing the sufficiency of a pleading are those prescribed by the code (Royce v. Brown, 3 How. 390; Quintard v. Newton, 5 Rob, 72). But the prior practice and forms of pleading are abolished only in a qualified manner (§ 471, post). There is no inconsistency or repugnancy in applying the provisions referred to from the revised statutes* under the code. It, therefore, remains in force (B'k of Genesee v. Patchin B'k, 13 N. Y. 314; Stone v. West. Trans. Co. 30 N. Y. 240; The Park B'k v. Tilton, 15 Abb. 384). So do the provisions of 2 R. S. 482, § 10, relative to the form of declaring for statute penalties (The People v. Bennett, 5 Abb. 384). That pleadings in actions against corporations are unaffected by the code (see B'k of Waterville v. Beltzer, 13 How. 272; Johnson v. Kemp, 11 id. 186; Union Mut. Ins. Co. v. Osgood, 1 Duer, 707).

b. Election of cause of action.-The code has not changed the common law rule that one may waive the tort and sue on the contract (Hinds v. Tweddle, 7 How. 278; and see 3 id. 378; 12 id. 531; 4 Barb. 36; 16 Barb. 633). And where vendees have been guilty of a fraud upon a purchase of goods on credit, the vendor may, without waiting until the period of credit has expired, reclaim the goods, or he may waive the tort and recover the yalue

* c. 2 R. S. 458, § 3.-In suits brought by or against a corporation, created by any statute of this State, it shall not be necessary to prove, on the trial, the existence of such corporation, unless the defendant shall have pleaded that the plaintiff is not a corporation (Laws 1864, ch. 422).

(Kayser v. Sichel, 34 Barb. 84; Wigand v. Sichel, 3 Keyes, 120; and see Roth v. Palmer, 27 Barb. 652; and 10 Abb. 206; 37 Barb. 270); and so of goods tortiously taken (Henry v. Marvin, 3 E. D. Smith, 71). Whether or not the tort is waived must be determined by the facts stated in the complaint (Chambers v. Lewis, 2 Hilton, 591; 10 Abb. 206; and see Edick v. Crim, 10 Barb. 445).

a. A mortgage creditor can, in the lifetime of the mortgagor, either sue upon the bond, or foreclose the mortgage; and he has the right, after the death of the mortgagor, at his option either to sue the heirs of the mortgagor upon the bond, or to foreclose the mortgage (Roosevelt v. Carpenter, 28 Barb. 428); so, too, an executor can maintain an action, either in his own name or as executor, upon a note given to him as executor for a debt due the testator at the time of his decease (Merritt v. Seaman, 6 N.Y. 168; and see Eagle v. For, 28 Barb. 473).

b. There is no authority for extending the right of election of actions so far as to try, under the form of an action for money had and received, a right or claim to real estate or to its possession, or to the rents and profits (Carpenter v. Stillwell, 3 Abb. 460; and see 15 East, 313; 2 C. & M. 495). Although the forms of action are all merged in one, yet form of action must not be confounded with cause of action. The same state of facts may, by being differently stated, constitute different causes of action; and a skillful adaptation of the facts, so as to constitute this or that cause of action, will sometimes determine the plaintiff's right to recover (see Van Leuven v. Lyke, 1 N. Y. 515; Fish v. Ferris, 5 Duer, 49; Eckstein v. Frank, 1 Daly, 334; and see 31 How. 431).

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c. It is said that a plaintiff cannot by varying his remedy [form of action] change the legal rights of the defendant. Where the substantial ground of action rests on promises, the plaintiff cannot, by changing the form of action, make one liable who would not have been liable on the promise (Campbell v. Perkins, 8 N. Y. 440, 441). And again, "It is a well-settled rule that a matter arising ex contractu, though infected with fraud, cannot be changed into a tort, in order to charge the infant [the defendant] by a change in the remedy" (The People v. Kendall, 25 Wend. 399; and see Munger v. Huss, 28 Barb. 79). The vendor, on repudiating a contract of sale, for fraud of the purchaser, may sue either in contract or in tort (Roth v. Palmer, 27 Barb. 652); and in his complaint, instead of setting out all the facts, he may claim for goods sold and delivered, leaving the facts of the transaction to be introduced at the trial (3 Keyes, 120); where defendant had sold goods as plaintiff's agent, had misapplied the proceeds and refused to account,-held that plaintiffs might elect either to sue on the contract for refusing to account, or for the breach of duty, and conversion of the money and goods (Ridder v. Whitlock, 12 How. 208; and see Chambers v. Lewis, 10 Abb. 206). But under the code there can be no embarrassment as to the form of action, and whether the action be brought upon the agreement express or implied, or in tort for the violation of the duty arising from the relation of the parties, is immaterial (Trull v. Granger, 8 N. Y. 119; and see Scott v. Pilkington, 15 Abb. 280). This dictum must be received with caution. In Walter v. Bennett, 16 N. Y. 250), plaintiff complained as for a tort; on the trial he proved a cause of action on contract. It was held a case of failure of proof, and he was nonsuited. And the court said, The form of the plaintiff's action is ex delicto; and before he can recover, he must show that defendant committed a wrong (but see Gordon v. Hostetter, 37 N. Y. 104). The same rule applies to a counter-claim (Mayor of N. Y. v. Parker Vein Steamship Co. 12 Abb. 300; 21 How. 289; Piser v. Stearns, 1 Hilton, 89). And it has been held that where plaintiffs had commenced their action as on contract, purposely in order not only to obtain an attachment against the defendant as a non-resident, but also to procure an order for publication against him, and after having by those means procured the defendant's appearance, they should not be allowed to amend the summons and complaint, to make the action in tort for converting plaint

iff's goods (Lane v. Beam, 19 Barb. 51). There is still a distinction between tort and assumpsit, and on a complaint for converting a promissory note, the plaintiff cannot recover for money received to his use (Andrews v. Bond, 16 Barb. 633; and see note to § 171; and see Munger v. Huss, 28 Barb. 79). In Hess v. Buffalo & Niagara Falls R. R. Co. 29 Barb. 391, the complaint stated facts capable of being used as the basis of either one of two causes of action, and the court said that the defendant might require that the plaintiff be put to his election for which cause of action he would prosecute (see, however, Scott v. Pilkington, 15 Abb. 280; and see note to § 275).

a. Where money has been collected on a judgment which is subsequently reversed, the party aggrieved may resort either to his remedy by an order of restitution, a scire facias, or an action (Lott v. Sweezey, 29 Barb. 87). And where the complaint claimed specific relief purely equitable, and made no demand for debt or damages, and the proof showed the relation of debtor and creditor between the parties, and that the real cause of action was a money demand only, the court refused to allow the plaintiff an order to have the issues tried by a jury, and dismissed the complaint (Craig v. Hyde, 24 How. 313).

b. Generally whenever a man may have an action on a sealed instrument, he is bound to resort to it (Young v. Preston, 4 Cranch, 239; Marine Ins. Co. of Alexandria v. Young, 1 id. 322). And at common law there was only one case in which, where there was a contract under seal, the plaintiff could declare generally, and on the trial give his deed in evidence in support of his claim. That case was where there was a sealed lease, under which the lessee had taken and held possession. There the lessor might elect either to sue in covenant on this lease (i. e. make the covenant the cause of action), or else to sue in debt for the rent (i. e. make the use and occupation the cause of action). See the reason for this (Gould's Pl. ch. 6, part 1, §§ 11, 13); and now a plaintiff, the lessor in a lease under seal, may, without referring to the lease in his complaint, state a cause of action for use and occupation, and, on a denial, may upon the trial give the lease in evidence in support of his right of action, and to show the relation of landlord and tenant, and the value of the use and occupation (Ten Eyck v. Houghtaling, 12 How. 523). It was, however, a well-settled rule, that where there was a special agreement and the plaintiff had performed on his part, the law raised a duty on the part of the defendant to pay the price agreed upon; and the plaintiff might count either on this implied assumpsit, or on the express agreement (Lawes Pl. 5; Jewell v. Schroepell, 4 Cow. 564; Feeter v. Heath, 11 Wend. 484; Mead v. Degolyer, 16 id. 637; Clark v. Fairchild, 22 id. 576; Hurst v. Litchfield, 39 N. Y. 377; 7 Trans. Ap. 179). This rule is not changed by the code, and the plaintiff may still, in such circumstances, rely on the implied assumpsit (Farren v. Sherwood, 17 N. Y. 227; Hosley v. Black, 26 How. 97; 28 N. Y. 438). But to sustain a general count in assumpsit on a special agreement, the special agreement must have been so performed as to leave a mere simple debt or duty between the parties (Evans v. Harris, 19 Barb. 416: see Atkinson v. Collins, 30 Barb. 430; 9 Abb. 353). Another instance where the plaintiff has an election of remedy is, where the cause of action originally accrued at a time beyond the term of limitation prescribed by law for bringing such an action, and the plaintiff intends to insist on his right to maintain the action by reason of a new or continuing acknowledgment or promise." There he may sue on the new promise, or "found his complaint on the original cause of action ;" and if, in that case, an answer of the statute of limitations be interposed, the plaintiff in avoidance of it may rely on the new or continuing promise (Esselstyn v. Weeks, 12 N. Y. 635). The reason for this is that the statute of limitations only bars the remedy, and does not extinguish the cause of action. But where a cause of action has been extinguished by release or otherwise, and there is a subsequent valid promise to satisfy such cause of action, such promise is not a revival of the original cause of action, but creates an entirely new cause of action; and such subsequent promise, and not the original cause of action,

must be set out in the complaint as the cause of action (Stearns v. Tappin, 5 Duer, 299; see Irving v. Veicht, 3 M. & W. 90). Where the original cause of action is modified, it must be sued on as modified (Holmes v. Holmes, 9 N. Y. 528).

a. A party injured by means of an injunction should proceed on the undertaking given on the issuance of the injunction, and not otherwise (Hall v. Fisher, 20 Barb. 442). And one at whose instance a receiver has been appointed cannot be allowed to prosecute a claim for which such receiver has already recovered judgment (Tinkham v. Borst, 24 How. 246).

b. Splitting cause of action.-There is no case or dictum which requires a party to join in one action several distinct causes of action. The plaintiff may elect to sue upon them separately (Phillips v. Beruk, 16 Johns. 136; Secor v. Sturgis, 16 N. Y. 554); and it is no objection that they belong to the same family of causes, provided their identity is not the same (Staples. v. Goodrich, 21 Barb. 317). An entire and indivisible demand cannot be split so as to form the basis of two actions (1 Salkeld, 658), and a writ of prohibition might issue to prevent several suits on one demand; see Jacob's Law Dict., courts; and if a party bring an action for part only of an entire and indivisible demand, the judgment in that action is a conclusive bar to a subsequent suit for the other part (Hopf v. Meyer, 42 Barb. 270; Bancroft v. Winspear 44 id. 209). There is sometimes a difficulty in discriminating between entire and several demands (21 Barb. 317). The distinction between demands or rights of action which are single and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts (Secor v. Sturgis, 16 N. Y. 548; and see Cashman v. Bean, 2 Hilton, 341). The distinction was pointed out in Phillips v. Beruk (16 Johns. 136), and Stevens v. Lockwood (13 Wend. 644). The question in Phillips v. Beruk was whether a recovery by the plaintiff for work and labor done in March, 1817, was a bar to another claim for work and labor done before that time, each claim being for an entirely disconnected and distinct piece of service (Staples v. Goodrich, supra). In the case of moneys lost in gaming on several occasions, a separate action may be brought for the amount lost at each sitting (Betts v. Hillman, 15 Abb. 184). An attorney suing for services must include his entire demand in one action (Beckman v. Platner, 15 Barb. 550).

c. In Farrington v. Payne (15 Johns. 432), a bed and bed-quilts were taken at the same time and by the same act, and a recovery in trover for the quilts was held to be a bar to a recovery in trover for the bed. In Smith v. Jones (15 Johns. 229), actions were brought for goods sold and delivered, the plaintiff in one claiming to recover for one barrel of potatoes, and in the other for two barrels of potatoes, all sold at the same time. The court held that the demand was entire and could not be divided. Miller v. Covert (1 Wend. 487) was the case of a sale of hay under a contract, delivered in parcels. The demand was held to be entire and indivisible.

d. In England the courts have held, as the supreme court held in Guernsey v. Carter (8 Wend. 492), that a tradesman's bill, for a series of articles delivered continuously, cannot be split (Bonsay v. Wordsworth, 36 Eng. L. & Eq. R. 283; 18 C. B. 325; Wood v. Perry, 3 Exch. R. 442). In Stevens v. Lockwood (13 Wend. 644), the plaintiff had sued on an account for property sold, work done, and for rent due, and on the trial had withdrawn some items; in the subsequent action for such items,-held the recovery in the first action was a bar. The reasoning in this case, and in Guernsey v. Carver, was dissented from in Secor v. Sturgis (supra). In Colvin v. Corwin (15 Wend, 557), two suits were brought for lottery tickets sold the defendant, On the trial of the first action, the plaintiff had judgment. That judgment was set up as a bar to the second action. On the trial it appeared that the tickets, to recover for which the suits were brought, were delivered to the defendant by two dif ferent agents of the plaintiff, at different offices, at different times, yet the supreme court held it an entire contract, and that the previous judgment was

a bar. Judge Strong, in Secor v. Sturgis (supra), says of that case (Colcin v. Corwin), "It is manifest it rests upon no sound principle, and is not law.” Judgment in an action for a breach of one covenant in a lease, or other instrument, is a bar to an action for the breach of another covenant in the same lease, committed before the first suit was commenced (Bendernagle v. Cocks, 19 Wend. 207; and see Fish v. Folley, 6 Hill, 54; Stuyvesant v. Mayor of N. Y. 11 Paige, 414; Coggins v. Bulwinkle, 1 E. D. Smith, 434; Beach v. Cram, 2 N. Y. 86; Ref. Church of Westfield v. Brown, 54 Barb. 191). A promissory note cannot be the foundation of two suits, each for a part of the note (Miller v. Covert, 1 Wend. 487). A letter written by defendant to G., stating that if W. will let a certain house to G., he, defendant, would become security for the rent, and directing G. to show the letter to W., and to send the papers to him, defendant, for execution,-held to be a contract to execute a security, and not to pay rent-that the contract was an entire one, and one recovery upon it was a bar to any subsequent action (Waterbury v. Graham, 4 Sand. 220).

a. A joint cause of action, vested in two or more, cannot be split up into several at the option of those in whom it is vested (Coster v. N. Y. & Erie R. R. Comp. 6 Duer, 46). The assignee of part of a claim should unite with the owners of the other part in an action for its recovery (Bowdoin v. Coleman, 3 Abb. 431).

b. Of course a demand may be split with the consent or assent of the defendant (Cornell v. Cook, 7 Cow. 310; and see Secor v. Sturgis, 16 N. Y. 559; Mills v. Garrison, 3 Keyes, 40; Carrington v. Crocker, 37 N. Y. 336); and he probably consents by not objecting when sued by the owner of one part (see 29 Barb. 120).

c. As to splitting a demand by assignment, see ante, p. 92, j.

d. Where a party brings an action for a part only of an entire demand, and obtains judgment, he cannot subsequently avail himself of the residue of his demand by way of set-off in an action against him by the opposite party (Miller v. Covert, 1 Wend. 487). But although a party who has a claim to damages for breach of a warranty may insist upon such claim in diminution of damages when sued for the price of the article warranted, he is not bound to do so; and his omission to insist upon such defense is no bar to an action subsequently brought by him for the recovery of damages (Cook v. Moseley, 13 Wend. 277).

§ 141. Complaint.

The first pleading on the part of the plaintiff is the complaint.

§ 142. (Am'd 1851.) Complaint, what to contain.

The complaint shall contain :—

1. The title of the cause, specifying the name of the court in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant;

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition;

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.