(No. 42.)

For a bill of goods sold, items not set forth and demand having been assigned to plaintiff.

SUPREME COURT-RENSSELAER COUNTY.

Joseph Maulin
agt.

Cornell Peck and William H. Fairweather.

This plaintiff complains against the defendants, and says, upon his information and belief, that on the 16th day of November, 1854, the above defendants were indebted unto Jared G. Bacon in the sum of $832.80, being the balance of an account for goods, wares, merchandise, lumber and personal property, by the said Bacon bargained and sold, and sold and delivered to the said defendants, on or about the 1st day of August, 1854, at the city of Troy in said county, at the special instance and réquest of the said defendants; and the said defendants being so, as aforesaid, indebted to the said Bacon, he the said Bacon, on or about the 16th day of November, by an instrument in writing under his hand and seal, for value received, sold and assigned, transferred and set over unto this plaintiff the said account, and all his right, title and interest therein, and all sums of money due, or to grow due, from the said defendants thereon, and this plaintiff is now the owner of the said account and claim, and all sums of money due, or to grow due thereon, and this plaintiff, upon

1 This complaint might be rendered more concise, without impairing its validity as a pleading, by omitting the parts in italics.

A sale and delivery need not be alleged to be at the request of the defendant. (Acome v. The American Mineral Co., 11 How., 24.)

his information and belief, says that the whole amount of the said indebtedness is now due and owing from the said defendants to him, this plaintiff.

Wherefore this plaintiff demands judgment against the said defendants for the sum of $832.80, with interest from the 15th day of November, 1854, besides costs, &c. PIERSON, BEACH & SMITH,

Plaintiff's Attorneys.

(No. 43.)

For a bill of goods sold, items being stated, and the demand having been assigned to the plaintiff.1

ALBANY MAYOR'S COURT.

Edmund A. Benedict
agt.

David V. N. Radcliff.

The plaintiff complains against the defendant:

That Wilcox & King, a firm doing business in the city of Albany, sold and delivered to the said defendant, at the times hereinafter mentioned, certain quantities of coal, at and for the prices hereinafter mentioned, to wit:

66

66

1852, Sept. 14. 5 tons Lehigh egg coal at $5.50,...$27 50 14. 3 tons Lehigh egg coal at $5.50,... 16 50 Oct. 5. 10 tons Lehigh egg coal at $5.50,.. 55 00 Nov. 30. 1 ton Cumberland lump coal, $7.50,.

66

750

$106 50

Amounting in the whole to $106.50; and that the said defendant has not paid the said sum, or any part thereof.

1 For goods sold, price agreed on, see ante, No. 9.

That on the 15th day of December, 1852, the said firm of Wilcox & King duly assigned, transferred and set over unto the said plaintiff the said account and demand against the said defendant.

Wherefore the said plaintiff demands judgment against the said defendant for the sum of $106.50, with interest from the 15th day of December, 1852, besides costs. HALE KINGSLEY, Plaintiff's Attorney.

(No. 44.)

For several claims of different kinds of money demands, some of which occurred in different rights, and are set forth in separate causes of action.

Title of the Cause.

The plaintiff complains of the defendant, and alleges the following facts constituting his cause of action:

First. That the defendant is indebted to the plaintiff in the sum of $- on an account for various articles of merchandise, consisting of dry goods and groceries, which were sold and delivered by the plaintiff to the defendant at different times between the -

day of

day of

and the

of the value of said sum of $

which is now due from defendant to the plaintiff, and

wholly unpaid.

Second. And for a second and further cause of action the plaintiff alleges, that on the

day of

defendant was indebted to one A. B. in the sum of $

the

for the labor and service of said A. B. upon the farm of said defendant, in cultivating the same from the day

of

to the

day of, a period of six months at

and for a certain price agreed upon between defendant and per month; and being so indebted, day of, for value received,

said A. B., to wit, $ the said A. B., on said sold and assigned to the plaintiff such claim and demand, and the defendant has not paid the same or any part thereof, but is justly indebted therefor to the plaintiff in the said sum of $

Third. And for a third and further cause of action the plaintiff alleges, that there is due him from the defendant the sum of $ which he claims to recover, on a due bill or note executed by the defendant to the plaintiff, of which the following is a copy:1 [Set forth copy.]

day of

Fourth. And for a fourth and further cause of action the plaintiff alleges, that on the one G. H. made his promissory note, whereby, for value received, he promised to pay, to the order of the defendant, three months from the date thereof, the sum of $—, and thereupon the said defendant, for a valuable consideration, endorsed the said note to the plaintiff. That on the day when said note became due and payable, the same was presented to the maker and payment thereof demanded, and refused; whereupon, on the same day, said note was protested and notice thereof duly given to the defendant, who has not paid the same or any part thereof, but said sum of $, with interest from, &c., is still due thereon from the defendant to the plaintiff.2

1 This is under section 162 of the Code. See precedents of complaints in such cases, Nos. 1, 2 and 3.

2 The plaintiff may in like manner set forth as many different causes of action arising in contract, and due him in his own right from the defendant, as he may have. He may join a demand due him in his own right, whether growing out of his own contract with the defendant or assigned to him by another person, with a demand due to

Wherefore the plaintiff demands judgment against the defendant for the said several sums so due him from said defendant, amounting in all to the sum of, &c., &c.

him as survivor. But it is supposed he cannot join a demand due him in his own right with another due him as executor or administrator. (Pleadings, 193.)

But claims, even if of the same kind, as for goods, labor, &c., if they have accrued to the plaintiff by different titles, as, for example, if one be a claim on his own contract with the defendant, and another have been assigned to him, should be separately stated, that is, should be set forth in distinct causes of action, as above. (Adams v. Holley, administratrix, 12 How., 326; Acome v. The American Mineral Co., 11 How., 24.) So also, in regard to demands on different notes and other instruments. Such instruments are entire contracts, each in itself, and are not, like the items of an account, susceptible of being all thrown together and embraced in a single statement of a cause of action, but there should be a separate statement for each.

The different statements or causes of action must also show, each for itself, the amount due or claimed upon each. (Clark v. Farley, 3 Duer, 695.)

They are required, also, by the rule (87), to be not only separately stated but plainly numbered. A defect in this respect, however, is formal merely, and would not be ground for demurrer. As to the proper mode for correcting such a defect, see Pleadings, 196, 197.

It is intimated in the text of the Treatise on Pleadings (683, 584), on what was considered at the time as the weight of authority, that a demurrer would lie for not separately stating causes of action that might otherwise properly be joined. On the authority of the later cases, however, the better opinion would seem to be that such a defect can only be corrected, before pleading, by motion. In addition to the cases cited in Pleadings (344, et seq., 683, 684), see Harsen v. Bayeux (5 Duer, 566); Dorman v. Kellam (General Term, 14 How., 184); Woodbury v. Sackreder (2 Abbott, 402); Cheesborough v. New-York and Erie Railroad Company (13 How., 558).