
    Ellen R. Logan, as Administratrix, etc., of Elizabeth J. Whitley, Deceased, Respondent, v. Frederick Nelson Whitley, Individually and as Executor, etc., of John Whitley, Deceased, and Elizabeth Frances Whitley, Appellants.
    Second Department,
    December 30, 1908.
    Husband and wife — action on ante-nuptial agreement — pleading — alternative grounds of recovery — failure of condition caused by wrongful act of promisor — party — action by wife’s representative.
    A complaint which alleges that the defendant’s testator entered into an ante-nuptial agreement with the plaintiff’s intestate in contemplation of marriage, whereby it was agreed that the wife should accept from her husband’s estate a certain sum in lieu of dower and her distributive share of personal property, in consideration whereof the husband was to pay said sum to the wife if she survived him as his lawful widow, the sum to be a charge upon his entire estate, alleges that the wife survived her husband, and further alleges under the guise of a, second cause of action that the husband shot and killed his wife and then committed suicide whereby her survival was prevented by his wrongful act, states, not two causes of action, but a single cause upon the contract asking recovery in either contingency.
    Such cause is upon contract, not in tort. Nor is there such inconsistency between the two grounds of recovery as prevents their being joined in one complaint.
    Where there are several distinct grounds upon which a plaintiff may recover on a single cause of action they may be alleged under different counts, and the plaintiff cannot be compelled to elect between them.
    As the consideration for such contract included the marriage and other mutual covenants in addition to the release of dower and having on the wife’s side been executed by marriage, she became entitled to the sum upon the contingency that she survived her husband.
    Even if the wife did not survive her husband the possibility of her doing so was prevented by his wrongful act, and hence neither he nor those claiming under him can defeat an action on the promise on the ground that the contingency did not happen. A party to a contract cannot set up the failure of a condition caused by his own fault.
    Under the circumstances the representative of the wife may maintain an action on the contract against the husband’s estate.
    Gaynob, J., concurred, in separate opinion.
    Appeal by the defendants, Frederick Kelson Whitley, individually, and as executor, etc., and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of July, 1908, upon the decision of the court, rendered after atrial at the Kings County Special Term, overruling the defendants’ demurrer to the complaint.
    
      Frederic C. Seaman [Edward M. Grout and Paul Grout with him on the brief], for the appellants.
    
      Fred L. Gross, for the respondent.
   Miller, J.:

On the 19th day of February, 1903, the plaintiff’s intestate, Elizabeth J. Logan, and the defendant’s testator, John Whitley, entered into a contract in contemplation of marriage, which provided that the former, if she survived the, latter, should accept from his estate the sum of $10,000 in lien of dower and of her distributive share of the personal property, and that the latter should hold all the real estate which he then owned, or might thereafter acquire, free from any claim of dower, inchoate or otherwise; in consideration whereof the latter agreed that the former should be paid the sum of $10,000 “ if she survive him as his lawful widow, as soon after his decease as may be practicable, and that said sum shall constitute a charge upon the entire estate, real or personal, of which he may die seized and possessed.” Thereafter the parties to said contract intermarried. On November 28, 1907, the husband shot and killed the wife and committed suicide. This action is brought by the personal representative of the wife to recover from the estate of the husband said sum of $10,000. The complaint in form purports to set forth two causes of action, containing like averments, except that, in the first, it is alleged that the ivife survived the husband, and in the second that the condition or the contingency of the wife surviving the husband was prevented by the wrongful act of the latter in shooting and killing her. The defendants demurred to the entire complaint on the ground of misjoinder of causes of action, in that, first, a cause of action on contract was united with one in tort, and, second, that two inconsistent causes of action were united, and to the second cause of action on the ground that it did not state facts sufficient to constitute a cause of action, and the appeal is from an interlocutory judgment overruling said demurrer.

While in form the complaint purports to state two causes of action, the plaintiff has but one. Instead of stating the one cause of action under separate counts, the pleader has in form alleged separate causes of action. The cause of action is on contract, not in tort. The plaintiff seeks to recover on the contract the sum of $10,000, first, on the theory that the contingency upon which it was to be paid happened; second, on the theory that the happening of .the contingency was prevented by the wrongful act of the defendant’s testator. There is no such inconsistency between the - two grounds of recovery as precludes their being joined in one complaint. The Code provisions respecting pleading were designed to prevent, not create, pitfalls, and to enable the parties to settle their differences in one suit. Where there are several distinct grounds upon which the plaintiff may recover on but a single cause of action, it is proper to allege under different counts each ground of liability, and the plaintiff cannot be compelled to take the hazard of an election. (Velie v. Newark City Ins. Co., 65 How. Pr. 1; Blank v. Hartshorn, 37 Hun, 101; Seymour v. Warren, 71 App. Div. 421; Shirley v. Bernheim, 123 id. 428.) In this ease the proof may show that the wife survived the husband, and it may show the reverse. In either event the cause of action is the same, but in the one case the plaintiff will show the happening of the contingency upon which the payment was to be made, and in the other case that the happening of said contingency was prevented by the wrongful act of the defendant’s testator. This is not a case where the plaintiff seeks to recover on distinct and irreconcilable claims, as where a cause of action on a contract is joined with one in disaffirmance of it, and the like cases. Edison Electric Illuminating Co. v. Kalbfleisch Co., 117 App. Div. 842; Kaufman v. Morris Building Co., 126 id. 388.) The demurrer on the ground of misjoinder was properly overruled.

It is contended that the demurrer to the so-called second cause of action was improperly overruled for the reason that sufficient facts were not stated to constitute a cause of action. It is argued that the $10,000 was not to be paid except on the contingency that tiie wife survived the husband; that it was intended to be in lieu of dower, and hence can only be recovered in case dower could have been recovered; that the defendants are not chargeable with the wrong of their testator; and that the plaintiff represents collateral heirs who are not entitled to enforce the contract.

While the plaintiff’s intestate agreed to accept said sum of $10,000 in lieu of dower, that was not the sole consideration for the promise of the defendants’ testator to pay her that sum. Her inchoate dower in the real estate owned by her husband at the time of the marriage or subsequently acquired by him was released. The marriage as well as the other mutual covenants formed part of the consideration. The contract was not wholly executory; so far as the plaintiff’s intestate was concerned it had been wholly executed and she had become entitled to the sum of $10,000 upon the contingency that she survived her husband. That claim was in the nature of a debt against his estate. (Matter of Baker, 83 App. Div. 530; affd., 178 N. Y. 575.)

A party to a contract cannot set up the failure.of a condition caused by his own fault. (Gallagher v. Nichols, 60 N. Y. 438; Risley v. Smith, 64 id. 576.) In this case the happening of the contingency upon which the payment was to be made was prevented by the wrongful act of the promisor, and hence neither he nor those claiming under him can defeat an action on the promise by showing that the contingency did not happen. A party may not profit by nor take advantage of his own wrong. (Riggs v. Palmer, 115 N. Y. 506.) While that case is not precisely like this, the principle upon which it was decided is applicable. The appellants contend that the case is distinguishable by the fact that the defendant’s testator benefited, not himself but his estate. We are unable to perceive the distinction.

The plaintiff is not a volunteer, and the cases holding that collateral relatives, who do not come within the object of the consideration of a marriage settlement, cannot maintain an action to compel specific performance of it have no application. The plaintiff does not claim as a beneficiary under the contract, but as the representative of her intestate.

The judgment should be affirmed, with costs.

Woodward, Hooker and High, JJ., concurred; Gaynor, J. concurred in separate opinion.

Gaynor, J. (concurring):

Causes of action have to e consistent with each other to be united in the "same complaint (Code Civ. Proc. § 484). The test of consistency is whether a'recovery may be had on each. • If, on the contrary, one cause, if recovered on, defeats the other or others, or, if valid, shows the other or others to be void, they are inconsistent (Bliss Code Pl. § 122). The two causes here alleged are obviously inconsistent; they cannot both be recovered on; recovery on one would defeat the other. But although the pleader has expressly pleaded a first and a second cause of action, the fact is there is but one on the facts alleged, and only one should have been in form pleaded. The cause is breach of a contract to pay $10,000. Whichever way the money came due'on the contract, viz., whether by the wife surviving the husband, or by the act of the husband in killing the wife and thereby preventing the money coming due by her surviving him, it remains the fact that there is only one cause of action, viz., for breach of the contract obligation to pay the money after it came due. The plaintiff could have alleged in one cause of action (1) that the husband willfully and wrongfully killed the wife and himself and (2) that she survived him; and that by reason of the premises the $10,000 secured by the said contract came due and payable. Such a complaint would state a good cause of action, and on the trial a recovery could be had on either theory. Hor would the allegation of killing be struck out on motion for irrelevancy. The answer to such a motion would be that the plaintiff might not be able to prove survivorship and therefore should not be prevented from recovering on proof of the other allegation, which would suffice without survivorship. And vice versa.

The objection that if the wife did not survive the husband, the cause of action was never in her, and therefore cannot have passed to her administrator, is only specious. It often happens that a cause of action accrues to an executor or administrator on a contract owned by his decedent which had not accrued to the decedent. The contract passes to the executor or administrator, and the cause of action on it may only accrue by the fact of the decedent’s death, or afterwards. ■

Interlocutory judgment affirmed, with costs.  