
    Bernard Rothchild et al., Pl’ffs, v. The Grand Trunk Railway, Def't.
    
      (Supreme Court, Special Term, Monroe County,
    
    
      Filed March, 1890.)
    
    1. Pleading—Complaint.
    Where the various causes of action alleged are practically the same and they are all founded on an alleged breach of contract, they may be set forth in different counts with allegations which are obviously designed to prevent a variance between pleading and proof.
    2. Same.
    Where the controlling facts set forth constitute a cause of action ex contractu, the fact that the pleader has chosen to employ the word “ negligent ” does not necessarily characterize the action as one of tort.
    8. Same—Ooepobations—Demurrer.
    An omission to state whether a defendant is a domestic or a foreign corporation may he taken advantage of by motion, but not by demurrer.
    Demurrer to plaintiffs’ complaint upon the grounds: 1. That the court has no jurisdiction of the cause or causes of action stated; 2, that two causes of action are improperly united, and 3. that the complaint does not state facts sufficient to constitute a. cause of action.
    
      David Hays, for pl’fís; Geo. F. Brownell, for deft.
   Adams, J.

No particular stress was laid upon the ground of' demurrer first above stated, when the case was argued, nor does the brief of the defendant’s counsel disclose sufficient confidence in the correctness of his position in that regard to render it. necessary to consider the question at length, ana it is perhaps sufficient to say that if the second and third grounds of demurrer are not well taken, there can be no doubt as to the jurisdiction of the court.

The theory of the defendant’s counsel appears to be that the pleader has united a cause of action upon contract with one for tort, and that consequently the complaint is demurrable. It is contended, however, that even if this were so the two causes of action arise out of the same transaction, and may, therefore, be properly united. It is difficult to see why, under our present practice, this contention is not well founded, Code Civ. Pro., § 484, subd. 9, and there certainly is abundant authority for it. Adams v. Bissell, 28 Barb., 382; Badger v. Benedict, 4 Abb. Pr., 176; Robinson v. Flint. 16 How. Pr., 240: Polley v. Wilkisson, 5 Civ. Pro., 135.

However, it is not necessary to determine this question inasmuch as the complaint can bear but one. construction, which is that the various causes of action set forth therein are practically the same, and that they are all founded upon an alleged breach of the defendant’s contract as a common carrier. It is true that, they are set forth in separate counts and with allegations which are obviously designed to prevent any variance between the pleading and the proof, but this method of pleading is authorized by the Code and recognized by the courts. Blank v. Hartshorn, 37 Hun, 101.

Nor does the fact that the pleader in alleging a breach of the contract has chosen to employ the term “ negligence ” necessarily characterize the action as one of tort.

It has been frequently held that where the controlling facts set forth in a complaint constitute a cause of action ex contractu, the mere presence of an averment of fraud or negligence does not make the action one ex delicto, Jones v. Walker, 63 N. Y., 612; Ledwich v. McKim, 53 id., 307; Sparman v. Keim, 83 id., 245, and the form adopted by the pleader in this case appears to be sanctioned by recognized authority in the matter of pleading. 2 Chit. Pleadings, 356.

The most serious question in the case, and the one concerning which the authorities differ, is that which arises upon the third ground of demurrer.

The complaint alleges that the defendant is a corporation doing business in this state, but omirs to aver whether it is a domestic or a foreign corporation, or under the laws of what state, county, or government it was created. In this respect it is clearly defective, Code Civ. Proc., § 1775, and the defendant insists that by reason of this defect “ facts sufficient to constitute a cause of action ” are not stated. The attention of the court has been directed to several recent adjudications directly in point, which clearly sustain the position of defendant’s counsel' and which, in the absence of others of equal weight, cited by the plaintiff, would undoubtedly be controlling, but the position taken by Mr. Justice Bradley, in the case of Hafner & Schoen Furniture Co. v. Grumme, 10 Civ. Proc., 176, that this defect is one of form and not of substance, and one therefore which cannot be taken advantage of by demurrer, commends itself to the judgment of the court as a precedent which may be safely followed.

The design of the section above referred to is unquestionably “to advise, by statement in the complaint, whether the corporation is domestic or foreign,” but this allegation does not constitute any part of the cause of action, which is just as complete without it as with it. Indeed a cause of action would be stated if the entire .allegation as to the corporate character of the defendant were ■omitted. Fox v. The Erie Preserving Co., 93 N. Y., 54-57.

Such an omission, or the one of which defendant complains, like his failure to state in the complaint the name of the county which the plaintiff designates as the place of trial, as required by § 481, may be taken advantage of by motion, but not by demurrer.

The correctness of this view of the question can be easily demonstrated by the application of a simple test.

The defendant, by interposing a demurrer, admits the truth of all the allegations in the complaint. We have then as conceded facts that the defendant is a corporation ; on or about April 27, 1889, it agreed with plaintiff, for a good and valuable consideration, to carry from Detroit to Buffalo two trunks containing goods of the value of $1,000, and that it has failed to fulfill on its part to plaintiff's damage of the sum stated.

What element is here lacking to make this a full and complete statement of a cause of action ?

The demurrer must be overruled, with leave to answer within, twenty days, upon payment of costs.  