
    William R. Weed, who Brings this Suit on Behalf of Himself and All Other Stockholders of the First National Bank of Saratoga Springs, N. Y., Situated Similarly with Himself, Appellant, v. The First National Bank of Saratoga Springs, N. Y., and Henry B. Hanson, Defendants, Impleaded with William B. Gage and Others, Respondents.
    
      Misfeasances and nonfeasances by the directors of a bank — a motion to compel a plaintiff to sepn/rately state causes of action, which he claims constitute but one cause of action in equity, will not be granted — the remedy is by demurrer.
    
    "Where a stockholder of a national bank begins an action against persons who were directors of the bank for a number of years, to compel them to pay over to the bank moneys which he alleges were lost by their negligence as such directors and also the amount of several dividends paid under their direction-during a number of years when there were no surplus earnings out of which such dividends could properly be paid, if the plaintiff claims that the complaint, which contains but one count, states but a single cause of action in equity, he will not be required, at the instance of the defendants, who claim that each demand for reimbursement of a dividend wrongfully paid constitutes a different cause of action, and hence that the complaint states several causes of action for misfeasance in the declaration of dividends, together with a cause of action for nonfeasance, to serve an amended complaint separately stating and numbering the alleged different causes of action,
    The rights of the defendants are not prejudiced by such a disposition of the matter, as, if they claim that causes of action have been improperly united, such question may be raised by demurrer, whether or not the causes of action are separately stated in the complaint.
    Appeal by the plaintiff, William R. Weed, who brings this suit on behalf of himself and all other stockholders of the First Rational Bank of Saratoga Springs, R. Y., situated similarly with himself, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of, Saratoga on the 1st day of February, 1905, requiring the plaintiff to serve an amended complaint separately stating and numbering the facts constituting each cause of action set forth in the complaint.
    The action is brought by the plaintiff to compel the defendants; who were directors of the First Rational Bank for a number of years prior to 1904, to pay over to the corporation moneys claimed to have been, lost by their negligence as such directors, and also the amount of several dividends which were paid under their direction during a number of years when there were no surplus earnings of the bank out of which said dividends could properly be paid. Upon defendants’ motion, plaintiff has been compelled to state separately his causes of action, to wit, one, a cause of action against the several directors of their negligence, and others, causes of action against the several defendants for the different acts of misfeasance in directing the payment of dividends without authority. From this order the plaintiff appeals.
    
      Theodore H. Swift, for the appellant.
    
      John L. Henning and Marcus T. Hun, for the respondents.
   Smith, J.:

This complaint is claimed by the plaintiff to state but one cause of action and that in equity for the reimbursement to the bank of moneys lost through the wrongful acts of the directors. The defendants claim that several causes of action are stated, to- .wit, a cause of action for negligence or non-feasance, and several causes of action for misfeasance, claiming that a demand for reimbursement for dividends wrongfully paid in each of the several years constitutes a different cause of action.

Under the authorities, we think the order \yas improperly granted. In O'Brien v. Blaut (5 App. Div. 223) an action was brought by the receivers of a bank against several directors for non-feasance and misfeasance, and an order was made compelling the plaintiffs to separately state and number the alleged causes of action. It was held “ that the order was improper in that the plaintiffs had been required to separate and separately state and number alleged different causes of action, when their theory of the action was that the complaint stated but a single cause of action.

“ That the question, whether the action be maintained upon the plaintiffs’ theory of a single cause of action in equity, was not involved in. the motion and was a question which could only be raised by demurrer.” Williams, J., in writing for the court, said : “ Whether the action could be maintained upon the plaintiffs’ theory of a single cause of action in equity was not involved in the motion and need not be determined here. The proper method of raising and determining that question if desired before the trial was by-demurrer.” ,

This case has been followed in the case of People v. Kelly (30 App. Div. 253) where it is held in a somewhat similar case: “ When it is fairly doubtful whether the complaint states more than one cause of action and the plaintiff intends to state but a single one, a motion of this character should not be granted but the defendants should be left to their remedy by demurrer.”

Plaintiff can hardly be compelled to divide what he claims to be a single cause of action. Defendants’ rights are in no way prejudiced by a denial of the motion. If they here claim causes of action to be improperly united, the question can be raised by demurrer whether or not such causes of action be separately stated in the complaint. It would seem to be the policy of the courts, under the authorities cited, to refuse to require the plaintiff to separate in parts what he claims to be a single cause of action.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

All concurred.

Order reversed,, with ten dollars costs and disbursements.  