
    James W. Payne, Respondent, v. New York, Susquehanna and Western Railroad Company, Appellant.
    Second Department,
    December 2, 1910.
    Pleading — negligence — making complaint more definite and certain.
    Where the complaint in a negligence action alleges facts which would permit plaintiff to invoke either the common law, the Federal Employers’ Liability Act, or the New Jersey Employer's' Liability Act, he will he compelled, on a motion to make the complaint more definite ‘ and certain, to separate and number the causes of action, for they are entirely distinct and the defendant is entitled to know what issues he must meet.
    Appeal by the defendant, the New York, Susquehanna and Western Railroad Company, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the- county of Orange on the 1st day of October 1910.
    
      Watts, Oalces <& Bright, for the appellant.
    
      Abram F. Servin and Itosslyn M. Gox, for the respondent.
   Thomas, J.:

This is an appeal from an order denying defendant’s motion to make the complaint more definite and certain, wherein it alleges that the plaintiff was thrown from a car “ by a sudden and violent action of the train ” and a similar allegation that “ Said injuries were caused by the improper movement.of the train upon which, .plaintiff was at work,” and. also by setting forth plainly either a.' cause of action based on defendant’s common-law liability, or upon the New Jersey Employers’ Liability Act, or upon the Employers’ Liability Act passed by Congress in. 1908, or by setting" forth three separate causes of action.

The only quéstion is whether, if plaintiff intends to rely upon the common law or one or both of the statutes, he should so state. There are three possible causes of action, each distinct from the others. Plaintiff relies upon Acardo v. New York Contracting & Trucking Co. (116 App. Div. 793) which does not necessarily aid him, while Uss v. Crane Co. (138 id. 256) and Gmaehle v. Rosenberg (178 N. Y. 147) support the defendant.

The complaint furnishes a: statement which permits the plaintiff to invoke either the common law, the Federal statute, or the statute of New Jersey, which is set out. If the plaintiff may rely upon one or all of these causes of action at the time of trial, I think he should so state to enable defendant to know what he may meet. These causes of action are entirely distinct, and there is no reason whatever for allowing' the plaintiff to conceal his claini until the trial is under way.

I think the order should be modified by directing the plaintiff to separate and number the causes of action if he intends to set forth a cause of action other than under the common law, and as so modified the order should be affirmed, without costs.

Hirsohberg-, P. J., Woodward, Jenks and Carr,, JJ., concurred.

Order modified by directing the .plaintiff to separate and number the causes of action if he intends to set forth a cause of action other than under the common law, and as so modified affirmed, without costs. • 
      
       See Laws of New Jersey of 1909, chap. 83; 35 U.' S. Stat. at Large, 65, chap.. 149, as amd. by 36 id. 391, chap. 143.^-[Rep.
     