
    VELIE v. NEWARK CITY INSURANCE CO.
    
      N. Y. Supreme Court, Third District; Special Term,
    
      February, 1883.
    Pleading.—Fire Insurance Policy.—Several Grounds of Recovery.—Election.—Statement of Mortagee’s Interest . in Property Insured.
    When a plaintiff has really two distinct and separate grounds for claiming the relief demanded in the complaint, and states each one therein separately and plainly, or where he is somewhat uncertain as to the exact ground of recovery the proof may afford, he may frame a complaint for the recovery of a single claim in several distinct counts or statements, and the court will not compel him to elect between them.
    
    
      
      So held, in an action against an insurance- company for the loss of property by fire, the complaint alleging first, the issue of a policy thereon, and second, a contract by defendant to insure and to issue . a policy.
    The complaint avei-red that by the policy, the loss, if any, was payable to T., “mortgagee, as interest may appear,”and that one 0. was the sole owner of the property insured, both at the time of its insurance and of its destruction by fire on a specified day, subject to a mortgage thereon owned by defendant T. to secure the payment of a sum named.—Held, that the statement of T.’s interest was sufficiently definite and certain.
    Motion by defendant to compel the plaintiff to elect between two separate statements of a single cause of action, and also to state the interest of the defendant Thompson in the insured property with more certainty and definiteness in the complaint.
    
      G. A. Clement, for the Insurance Company, in support of the motion.
    
      John J. Linson, for plaintiff, opposed.
    The facts sufficiently appear in the opinion.
    
      
       In Schultz v. Third Avenue R. R. Co., 89 N. Y. 242, plaintiff’s ' complaint contained three counts. The first alleged in substance that on October 30, 1877, he got upon the rear platform of one of defendant’s cars, as a passenger; that the conductor, without asking him for his fare or giving him an opportunity to pay it, violently threw him off from the car, in front of a car passing upon an adjoining track; and he was run over and injured “to his damage $10,000.” The other two counts related to the same accident, alleging that it occurred through defendant’s negligence, each closing “to his damage $10,000.” In the prayer for relief plaintiff asked damage “to the amount of §20,000.” Upon the trial the court ruled in substance that the plaintiff could only recover under the first count. He obtained a verdict for $15,000. Defendant claimed that as the first count only alleged $10,000 damages, the verdict was unauthorized. Held, untenable; that the general prayer for damages at the close of the complaint controlled; but that if, in order to sustain the recovery, the first count should have alleged $15,000 damages, the defect was one that could be amended on appeal.
      So in Barr v. Shaw, 10 Hun, 580; to meet a possible variance in the proof or ruling upon the trial as to .the validity of the arrest a count, or cause of action, for false imprisonment was added to one for malicious prosecution.
      The court say: “If the arrest is established to be legal, then a cause of action strictly for malicious prosecution must be made out. If the arrest is held to be illegal, then, with a single count fon malicious prosecution, a recovery for false imprisonment could only be had by proving the allegations of malice and want of probable cause, which are only important in an action for false imprisonment as affecting the damages. Such a pleading as the one in the present case tends to the attainment of justice.” See also 9 Crim. L. Bui. 335, where the same doctrine is sustained.
    
   Westbrook, J.

The plaintiff, John W. Velie, as the assignee of Giles W. Cowley, seeks +o recover of the defendant, The Newark City Insurance Company, the sum of $1,250, with interest from January 4, 1882, that being a portion of the loss, which Cowley is alleged to have sustained in the destruction by fire, of certain property of which he was then the owner.

The complaint states separately two grounds, or reasons, for the liability of the insurance company : First, that such defendant in consideration of $25 paid to it by said Cowley, issued to him its policy of insuranee by which it agreed to insure him for the term of one year, from December 24, 1881, against loss or damage by fire, upon certain property described in the policy, and. fully set out in the complaint, to the amount of $1,250; and second, that the said insurance company, by its duly authorized agents, Messrs. Ogden and Little, of Middletown, Orange County, N. Y., on or about December 24,1881, for a consideration agreed to be paid by the said Cowley, promised and contracted to insure the said Cowley against loss or damage by fire to the same property, to the extent of $1,250, for the period of one year, and to issue its policy therefor.

The complaint also avers that by the policy of insurance, the loss, if any, was “first payable to John A. Thompson, mortgagee, as interest may appear that Cowley was the sole owner of the property insured and destroyed, both at the time of its insurance and of its destruction by fire on January 4,1882, subject, however, to a mortgage thereon, owned by the defendant, Thompson, to secure the payment of $2,250; and that the insurance company has not paid the amount of the insurance to Thompson, nor has Thompson brought any suit to recover the same, and that the company refuses and neglects to make such payment.

The insurance company, by this motion asks, first, that the plaintiff shall be compelled to elect and decide whether he will rely for a recovery upon the written policy of insurance, or upon the agreement to insure and to issue a policy; and second, that the complainant should state more definitely and certainly the interest of Thompson in the insured property. Should the relief asked, or any part theroof, be granted ?

The question, which the application to compel the plaintiff to elect between the two grounds of recovery stated in the complaint presents, is this: When a plaintiff has really two distinct and separate reasons for the obtainment of the relief demanded in the complaint, and .states eách one therein separately and plainly, or where, as is probably the case in this instance, the plaintiff and his attorney are somewhat uncertain as to the exact ground of recovery the proof may afford, and therefore frame a complaint for the recovery of a single claim in several distinct counts or statements, so as to meet the proof, should an election be compelled %

In the discussion of this question, it must be admitted that the defendant has several reported cases which support his proposition, Gardner v. Locke, 2 Civ. Pro. R. (Browne's Series), 252 ; Comstock v. Hoeft, Month. Law Bul. 43 ; Dickens v. N. Y. Central R. R. Co. ,13 How. Pr. 338). Some of the reported cases were rightly decided upon other grounds than that which holds that a party plaintiff must be limited to a single statement of facts giving him á right to the relief demanded, when in truth there are other facts also entitling him to such relief, or when more than one statement is necessary to meet any contingency of the trial. The soundness of the rule compelling an election has never favorably impressed me, and reflection upon the present motion has fully confirmed those doubts. In the discussion of a legal problem there generally are several reasons tending to a certain conclusion, all of which counsel in argument would present; and so in the trial of a cause, there generally are distinct and separate lines of fact tending to give the same one relief asked, which a careful pleader should embody in the complaint. It would seem to be absurd for a judge to limit counsel to the presentation of a single reason' upon the argument of a legal proposition, and to me, at least, it seems equally absurd to limit a party to the' statement in his complaint of one line of facts establishing his right of recovery, when he has really several, or when the conrt can plainly see, as it can in this case,.that different averments are proper to meet an emergency of the trial, which cannot be foreseen prior to its occurrence. Take, for instance, the case of a ’party who is the heir-at-law of a deceased testator, seeking, under section 1,537 of the Code, to partition and to- recovery property held under an alleged will. The reason which he assigns in his complaint for a recovery is, that the apparent devise, under which the property is held, is void, because: first, the testator was legally incompetent to make a valid will; second, the instrument, alleged to be a will, was procured by fraud and undue influence ; and third, the execution thereof was insufficient and defective. In a case like the one just put, or in one like that before us, in which it is often very difficult to decide whether a policy of insurance has actually been issued, or whether there has been only an agreement for insurance and for a policy, can any good reason be adduced for compelling the plaintiff in advance of a trial, or even at the trial, to elect upon what ground he will stand, and present his case % If either or both are tried, the proof upon each ground of recovery stated may be close and conflicting. A jury of twelve men may be divided in opinion as to which one is established, while all may unite, some for one reason, and some for another, in the conclusion that the plaintiff is entitled to recover. If, under such circumstances as have been stated, an ■election is compelled, justice may fail and wrong succeed. It is no answer to this argument to say, that if the plaintiff is unsuccessful, another action can be brought setting up a ground of recovery not pressed upon the first trial.

The right to bring a second action for the same subject-matter, though for a different cause, is more than doubtful; but even_though the judgment in the first action is no bar to the second, why should a party fail in the relief to which he is in fact entitled, and which he would have obtained on the first trial, if he had been allowed to state his whole case in the complaint, and be subjected to the delay, cost and vexation of a new trial, by the adoption of a rule, which limits the complaint to the statement of a single reason or ground for a recovery. The second trial, too, might fail, if the issue was limited by the court compelling an election, because twelve men could not agree to sustain a recovery upon that single reason or ground.

The practical effect of the rule is obvious. A plaintiff may often fail to obtain that which is his due, because he presents his grounds of recovery” singly, when he might succeed if they were all presented in one suit; and often, though he may succeed in the end, he has suffered in costs, delay and vexation, which could and should have been avoided. A defendant may present as many defenses as he has to a single claim, though, on the face of the answer, they may seem to be inconsistent, and no good reason can be given why a plaintiff may not present by his complaint as many different statements of distinct lines of fact as he has, or as he supposes himself to have, giving him the right to the relief which he asks. It, undoubtedly, is the interest of the defendant to limit the plaintiff in every action, as is now sought to be done by this motion, but as in the administration of justice every argument should be weighed and every pertinent fact considered, it cannot be conceded that, on the trial of an issue of fact, a plaintiff should be limited in his facts to a single ground of recovery, any more than upon the discussion of a legal problem, he should be limited to the statement of a single argument.

The point which has been discussed is not new to the judge writing this opinion. In Talcott v. Van Vechten, the plaintiff sought to make the defendant liable for a debt due the former from “The Olcott Iron Company.” The complaint alleged in two separate statements, two distinct lines of fact tending to make the defendant liable for that demand. On a motion made at special term to compel the plaintiff to elect between the two, such motion was denied upon the ground (stated in a memorandum) that it was “the right of the plaintiff to set forth all the facts, which made the defendant liable,” and that the statement of “ two distinct grounds of liability” for “only one cause of action ” was proper. On appeal to the general term of the third department, this decision was affirmed (25 Hun, 565). In this department the question argued must therefore be deemed settled.

Perhaps one other thought on this point may be separately added, though it has already been suggested. It is impossible for a party or his counsel to know in advance of á trial the exact facts of a case. It is often difficult' in an action like the present to determine whether there was an actual insurance, or a simple agreement to insure and deliver a policy. There may be danger in presenting the case upon a single ground, while a recovery may be certain if the plaintiff is allowed to present both. Many other cases of like uncertainty will readily recur to the mind of a practicing lawyer. Why then, it may well be asked, unless justice is to be hampered, should a party be compelled to do that which may result in his defeat, when justice and right require his success ? So to construe and interpret the Code defeats its entire object, which was to simplify and make easy, and not to perplex the administration of justice. Precisely this view of this questioti. was taken many years ago by Judge Cowles, with the concurrence of the judges of the general term, in Jones v. Palmer (1 Abb. Pr. 442), and it seems to be so clearly right as to preclude discussion.

But a single word need be added upon the second applicaiion—that to compel a more definite statement as to the interest of John A. Thompson in the insured property. It is difficult to see how the complaint could be made more explicit in that particular. It is distinctly stated that he held a mortgage at the time of the fire to secure the payment of $2,250. What effect, if any, this fact may have upon the rights of the plaintiff is not before me, and is not determined. The allegation is definite, certain and clear, and cannot be made more so by additional averments.

The motion of the defendant must be denied, but without costs, gs the moving party is sustained in his practice by several adjudged cases. 
      
       Motion for a new trial in this case is reported in 38 Barb. 41.
     