Miles M. O'Brien and James G. Cannon, as Receivers of The Madison Square Bank, Appellants, v. Joseph F. Blaut and Others, Defendants; Frederick Uhlmann, Respondent

Miles M. O’Brien and James G. Cannon, as Receivers of The Madison Square Bank, Appellants, v. Joseph F. Blaut and Others, Defendants; Frederick Uhlmann, Respondent. Complaint ■ — an order requiring plaintiffs to separate and state sepa/rately, as causes of action at law, allegations in a complaint which they claim constitute a single cause of action in equity, is improper. Upon an appeal from an order directing the plaintiffs in an action to serve a further amended complaint, and therein to separate and separately state and number the several causes of action contained in such amended complaint, it appeared that the action was brought by the receivers of a domestic banking corporation against its former directors to recover damages for their wrongful acts, and that upon a hearing in the Court of Appeals upon a demurrer interposed to the original complaint, that court was of the opinion that the original complaint did not call for any relief in equity, hut stated several separate causes of action at law against different defendants. That court did not pass, however, upon the question whether, under proper allegations, the action could he maintained in equity, and in the amended complaint the plaintiffs sought to supply certain allegations which would bring the case within equitable cognizance. Held, that the order was improper in that the plaintiffs had been required to separate and separately state and number alleged different causes of action, when their theory of the action was that the complaint stated but a single cause of action; That the question, whether the action could he maintained upon the plaintiff’s theory of a single cause of action in equity, was not involved in the motion and was a question which could only he raised by a demurrer. Appeal by the plaintiffs, Miles M. O’Brien and another, as receivers of the Madison Square Bank, 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 25th day of February, 1896, granting the motion of the defendant Frederick Uhlmann that the plaintiffs he directed to serve a further amended complaint and therein to separate and separately state and number the several causes of action in said amended complaint contained. The action was brought by the receivers of a domestic banking corporation against persons who had been directors of the corporation, to recover for the wrongful acts and-the breaches of trusts of the defendants as such directors, whereby injury had been done the corporation and the trust fund in the hands of the receivers. The original complaint was demurred to by the defendants, the demurrer was overruled at the Special Term and the General Term affirmed the decision of the Special Term, but the Court of Appeals reversed the Special and General Terms of the Supreme Court and sustained the demurrer with leave to the plaintiffs to amend their complaint. (O’Brien v. Fitzgerald, 143 N. Y. 377 ; 144 id. 643.) Pending these appeals other defendants made a motion to require-the plaintiffs to amend their complaint so as to make it more definite and certain, and an order was made on appeal in the General Term requiring such amendment to be made and specifying the details to be alleged. Subsequent to the decision of the Court of Appeals on the demurrer, and the General Term as to the amendment, the plaintiffs served an amended complaint designed to comply with the General Term order and to cure certain defects which led the Court of Appeals to sustain the demurrer to the original complaint. The Special Term thereafter made the order here appealed from. Samuel Untermyer and Louis Marshall, for the apjiellants. William A. Jenner, for the respondent, Frederick Uhlmann. [MAJORITY — Williams, J. :] Williams, J. : The order appealed from was made upon the theory that the-complaint as amended really alleged several causes and not a single cause of action. The plaintiffs claimed they alleged but one cause of action, and not several. It is not claimed that the amended complaint was indefinite or uncertain. All the facts were stated in detail, as required by the General Term order. his was not a demurrer to the complaint, but the plaintiffs, who claimed that they had alleged but a single cause of action, were required by the order appealed from to separate the facts alleged, to call the separate parts distinct and separate causes of action, and to number them accordingly. "We think the court erred in making such an order. "Whether the action could be maintained, upon the plaintiffs’ theory of a single cause of action in equity, was not involved in the motion and need not be determined here. The proper method of raising and determining that question if desired before the trial was by demurrer. The plaintiffs failed in the Court of Appeals to uphold their original complaint, because the court was of the opinion that the action was not in equity, but that the complaint disclosed several separate causes of action at law against different defendants and that the parties and causes of action were improperly joined. The court did not pass upon the question whether such an action with proper allegations could be maintained in equity. It held that it could not certainly be maintained in the absence of certain allegations. The plaintiffs in their amended complaint sought to supply these necessary allegations and then claimed that the action was one in equity and not at law. The learned judge at Special Term considered the question of the right to maintain the action at all, as if the question were raised by demurrer, and having arrived at the conclusion that it could not be maintained, he was of the opinion that the plaintiffs should be required to separate its one cause of action in equity against all the defendants into several and distinct causes of action at law against different defendants, in order that such separate causes of action might be proper subjects of demurrer by the various defendants. This was not proper. The plaintiffs should have been permitted to allege, what they claimed they had, a single cause of action. They should not have been compelled to allege a large number of distinct causes of action, which they conceded would be proper subjects of demurrer. If the defendants desired to raise the question as to the plaintiffs’ right to maintain their one cause of action in equity, they should have done so by demurrer. This was not the proper remedy. The order appealed from should be reversed, with costs of appeal, and the motion- denied, with ten dollars costs. Barrett, Rumsey, Patterson and Ingraham, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.