BLANCHARD v. JEFFERSON

BLANCHARD v. JEFFERSON. N. Y. Supreme Court, General Term, First Department; February, 1892. 1. Pleading; separate statement of several causes.] A complaint alleged that on the dissolution of a co-partnership between plaintiff and defendant, a balance was struck, and what was due the retiring partner was left by him with defendant, his co-partner, as a loan; and that the retiring partner was thereafter employed by the other on a salary; and that upon the amount due for the loan and salary, various sums had been paid tp plaintiff, and that a specified balance remained due.—Held, that the complaint set forth not a single cause of action for an accounting, but two, namely the loan and the claim for salary, which not arising out of the same transaction, were distinct causes of action, and a motion to compel separate statements must be granted. 2. The same; payments not specifically appliedl\ In stating such, causes of action separately, it need not, however, be alleged what amount was paid upon each cause of action, or what, was due upon each ; but it is proper after stating the causes of action separately to plead the payments and balance due plaintiff as facts common to both causes. Appeal from an order of the Special Term requiring plaintiffs to make their complaint more definite and certain. The action was brought by Henry B. Blanchard and others against Susan Jefferson individually and as executrix. The complaint alleged that the defendant and plaintiff’s testator entered into a co-partnership in 1874, and that the co-partnership was continued until January, 1881, when it was dissolved by mutual consent, and upon the date of the dissolution the accounts between the co-partners were settled and balanced, and there was due the the plaintiff’s testator $14,651.92 from said co-partnership and that Jt was agreed between the defendant and plaintiff’s testator that such balance should remain on deposit .in the business and as a loan to the defendant at the legal .rate of interest. The complaint further alleged that thereafter the plaintiff’s testator was employed by the defendant at a .salary of $3,000 per annum, and that from time to time "various amounts were paid to plaintiff’s testator on account of said salary and on account of his said deposit until 1887, since which time no payments have been made, and that there is due for and on account of said deposit and said loan the sum of $16,845.06. Defendant moved the court below to make the com-i ■plaint more definite and certain by separately stating and numbering the facts constituting each cause of action set forth in the complaint, and the court made an order requiring the plaintiff to make the complaint more definite and certain by separately stating and numbering the facts constituting each cause of action set forth in said ■complaint, and alleging and stating the amount paid by the defendant for and on account of each cause of action and the amount claimed by the plaintiffs for and by reason of each cause of action alleged in said complaint. G. M. Pinney, Jr., for appellants. C. R. Cheever, for respondents. An action on an account stated, or for a debt resting in account, is quite different from an action for an accounting. The latter is appropriate where defendant stands in a relation or under a contract which imposes upon him the affirmative duty of rendering an account, and substantiating its "items. The burden is on plaintiff to prove that defendant is under a duty to account. This is to be done at the hearing, and if the duty is made out an interlocutory judgment requiring defendant to perform this duty is awarded, and the cause then proceeds, usually before a referee, to have the account taken and stated, and in this part of the case the burden is on defendant to render and support the account, as it has been adjudged to be his duty to do. Such a cause of action is appropriate for a bill in equity; and, under the Code, for an action of an equitable nature, and in such action an arrest may be granted by the court if defendant threatens to leave, etc., and thus render the desired interlocutory judgment fruitless (Code Civ. Pro. § 550)- And interlocutory judgment may usually be enforced by proceedings for contempt (§ 1242). An action upon an account stated, or for a debt resting in account, is an action on a common law cause of action in which the burden is on the plaintiff to prove not only his right to recover but the amount also ; and the cases in which equity has jurisdiction, are only those where the account is. so complex that a jury is not a. fit tribunal to try the cause : and even then, under ourstatutes allowing a reference of such causes, it is discretionary for a court of equity to decline to exercise its concurrent jurisdiction and leave the plaintiff to an action of a common law nature. This very sensible decision accords in principle with other recent decisions that facts which are matter of inducement to each of several causes of action, such as the incorporation of a party, or the legal capacity of a party executor,, etc., may be stated in a preliminary or introductory part of the complaint, before the “ separate statement ” -of each cause of action, and without being repeated in them. The rule that each cause of action must be stated so as to be complete in .itself, either by embodying all the necessary facts, or by express reference to a preceding cause of action in which they are stated, I understand to be a rule of judicial convenience founded on the fact that otherwise the striking out of one cause of action by motion, or its withdrawal might leave a complaint insufficient on its face. But sucli results cannot follow where the facts common to several causes of action are stated once for all, either, as in the case of capacity of parties, in the beginning of the complaint, and before commencing the statement of the first cause of action, or, as in case of unappropriated payments, stated at the end of the complaint after the close of the last cause of action, as in the text. It is upon the same principle that one demand of relief suffices for several causes of action. [MAJORITY — O’Brien, J.] O’Brien, J. [Stating the facts as above]-The question presented upon this appeal is necessarily dependent upon one or the other of two views we may take as to whether the complaint states one or two causes of action. If the appellant’s contention is correct, that but one cause of action is set forth, namely, an action for an accounting, then the order appealed from should not have been made. We do not think, however, that the complaint can be so construed. It seems to us that the complaint contains two causes of action, one for an alleged balance claimed to be due upon the dissolution of the co-partnership, which was deposited with the defendant as a loan, and the other for salary claimed to be due said plaintiff’s testator on a contract of employment after the dissolution of the co-partnership. These two causes of action are independent, distinct .and separable. They did not arise out of the same con-j tract or transaction, but each arose out of separate, distinct and independent acts and contracts. One cause of action is purely for money loaned; and thel •other for salary under a contract of employment. If our construction of the complaint is right, it would follow, under section 483 of the Code, that the facts con; .stituting each cause of action should be separately stated .and numbered. So much, therefore, of the order as requires this should be affirmed. But the remainder of the order, which requires that the complaint should allege and state the amount paid by the defendant for and on account of each cause of action, and the amount claimed by the plaintiff for and by reason of each cause of action alleged in said complaint, should be reversed for the reason .that it is entirely competent, after stating two separate and distinct causes of action, for the plaintiff to allege that there was paid thereon from time -to time an amount which can be specified, and that there is a balance due thereon as claimed in the complaint. That this form of pleading is correct is shown by the facts appearing that the amounts due upon these two several causes of action were from time to time lessened by-payments made thereon which were not appropriated by either the debtor or creditor to either claim in particulárso that it would be impossible for the plaintiff to state-just what amounts were paid on one or the other of these-claims. It would appear that the credit was given the plaintiff" by the defendant for the amount of both claims, and from, time to time as moneys were paid they were debited, against the credit thus created and the balance held as-the amount due plaintiff upon both claims. The order appealed from should be modified accordingly, without costs to either party on this appeal. Van Brunt, P. J., and Patterson, J., concurred.