John D. Dailey and De Witt C. Ivins, Respondents, v. Standard Shipbuilding Corporation, Appellant

John D. Dailey and De Witt C. Ivins, Respondents, v. Standard Shipbuilding Corporation, Appellant. First Department, October 26, 1917. Pleading — complaint — action to recover moneys earned and prospective damages — causes must be separately stated and numbered. A complaint which seeks to recover moneys earned under a contract, the performance of which was prevented by the defendant, and also damages suffered and prospective profits lost by the defendant’s breach, states two causes of action which must be separately stated and numbered. But all the damages alleged to have been caused by the breach may be properly included in a single count. Appeal by the defendant, Standard Shipbuilding Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of September, 1917, denying its motion to require plaintiffs separately to state and number their causes of action. Francis C. Nickerson, for the appellant. Mark Ash, for the respondents. [MAJORITY — Scott, J.:] Scott, J.: Plaintiffs’ action is based upon a contract with defendant for filling in certain premises at Shooter’s Island, New York. It is alleged that plaintiffs entered upon the performance of the contract on November 13, 1916, and continued to perform it until August 6, 1917, when they were stopped by defendant and prevented from further performing. They now sue in one count for moneys earned while they were engaged in the performance of the contract, and for damages suffered and profits prevented by reason of defendant’s acts in preventing further performance after August 6, 1917. It is obvious that the complaint contains two causes of action, one for moneys earned under the contract, and another for damages suffered by reason of its breach. These should be separately stated and numbered. (Smith Bros., Inc., v. Stern, 148 N. Y. Supp. 1; Perry v. Dickerson, 85 N. Y. 345.) All the damages alleged to have been caused by the breach may be properly included in a single count. The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted to the extent indicated. Clarke, P. J., Dowling, Smith and Page, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted to extent indicated in opinion. Order to be settled on notice.