
    Sebastian Acardo, as Administrator, etc., of Guiseppe Acardo, Deceased, Appellant, v. New York Contracting and Trucking Company and New York Contracting Company, New Haven Improvements, Respondents.
    Second Department,
    January 11, 1907.
    Negligence — pleading —joinder of common-law action and action under Employers’ Liability Act.
    Where the plaintiff has a single cause of action based upon the negligence of the defendant and sets out separate acts of negligence, some constituting negligence at common law and others under the Employers’ Liability Act,- he should not be compelled to amend his pleading, separately stating the common-law action and the action under the statute.
    Allegations of negligence not proved at trial may be considered as surplusage.
    Appeal by the plaintiff, Sebastian Acardo, as administrator, etc., from an order of the Supreme Court, made at the ¡Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 22d day of September, 1906.
    
      Thomas J. O'Neill, for the appellant.
    
      J. C. Toole [James A. Deering with him on the brief], for the respondents.
   Woodward, J.:

The plaintiff set forth an action, based upon the defendants’ nég^ligence, alleging various grounds of negligence, including common-law grounds and those arising under the Employers’ Liability Act (Laws of .1902, chap. 600), and set forth,'as it is claimed, that One John Gahler was in the defendants’, employ operating a dirt train, for the purpose of gaining an admission of this fact in the pleadings, thus saving the trouble of proving a fact which was involved in the case. The defendants moved for an order striking out as “ redundant and irrelevant ” this allegation in inference to" Gahler and the other allegations involved in a common-law action, and the order appealed from strikes out these allegations unless the plaintiff shall serve an amended complaint separately stating his common-law-action and his action under the Employers’ Liability Act. xThe plaintiff appeals.-

The plaintiff clearly has but one cause of action, and that is for the damages he has sustained through the actionable hegligénce of the defendants, if such negligence exists; whether the facts bring his case within the Employers’ Liability Act or whether he must rely upon his common-law rights, must depend upon the’ evidence which he is able to produce upon the- trial, and. we.ean see no good reasdn for a refinement of the pleadings such as is directed by the order appealed from. If the plaintiff establishes his cause of action under the. Employers’ Liability Act, the common-law allegations are mere surplusage, just as a portion of them-would be if 'various common-law grounds were asserted and only one of them proved.

The authority of section 545 of the Code of Civil Procedure to strike out “irrelevant, redundant or scandalous matter” has not been understood to cover a case-of this character, so far as we have been able.to discover. On the contrary,-it was said in considering .this provision of the Code in Carpenter & Wilcox v. West & Van Benthuysen (5 How. Pr. 53, 55) that “ By ‘ irrelevant or redundant ’ in the Code, I take it is meant," what is usually'understood as impertinent ; for a- pleading in equity is impertinent, when it is stuffed with long recitals', or long digressions,' which are altogether' ' unnecessary and totally immaterial to the matter in hand,” and clearly this is not such a case. Here the plaintiff only claims to have a single cause of action; it is based upon the negligence of the defendants, and lie has specified several different propositions as to which the defendants are alleged to have been negligent, some of these.constituting actionable negligence at common law and some of them under the statute, a.id the defendants are equally liable in either event, but are only liable for the single damages sustained by the plaintiff. Why should lie be compelled to amend his pleadings and to set up two causes of action where he only has one, at the expense and delay of this "motion? . Ho practical -reason, no reason commended-by the law, appears to us.

It is true that in Mulligan v. Erie Railroad Co. (99 App. Div. 499) this court refused to compel a plaintiff to stand upon his common-law rights, and permitted him to amend his complaint by setting up his common-law action and his action under the Employers’ Liability Act in separate counts, hut that was not the real question under consideration there, the point involved being that the plaintiff had elected to stand upon his common-law rights, and the court held that he was entitled to either remedy, and strongly intimated that his second count, under the Employers’ Liability Act, was all that was necessary. The case decided no question involved here, nor do we find that the question has been adjudicated.

We conclude that the matter directed to be struck out properly belongs in the complaint, and that the plaintiff, having but a single cause of action, may not be compelled to plead two causes, but-that' the allegations of negligence which are not admitted or proved may be considered as surplusage, and that the plaintiff has a right to submit his case upon the pleadings as they originally stood.

The order appealed from should be reversed, with costs, and the motion denied, with costs.

Hirsohberg, P. J., Jenks, Rich and Milder, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. 
      
       Code Proc. § 160, revised in Code Civ. Proc. § 5.45.— [Rep.
     