
    Isadore Peckeroff v. Hyman Peckeroff
    Superior Court Middlesex County
    File No. 9196
    Memorandum filed February 13, 1946.
    
      Leonard O. Ryan, of Middletown, for the Plaintiff.
    
      William M. Citron, of Middletown, for the Defendant.
   INGLIS, J.

This action was instituted on the common counts. The plaintiff has now filed a substituted complaint alleging, in substance, that the defendant holds title to real property in a resulting trust for the plaintiff and praying an injunction compelling a conveyance of the property to the plaintiff, damages and other reli.ef.

None of the common counts is a general statement of the cause of action set up in the substituted complaint. It is clear, therefore, that the substituted complaint is not a permissible one to be filed in this action. General Statutes, §5527; Gallup v. Jeffery Co., 86 Conn. 308.

The plaintiff contends that the defendant’s' remedy would lie in a motion to strike out but does not rest in a demurrer. It is probably true that the question could properly have been raised on a motion to strike out on the ground that the substituted complaint was improperly filed. Practice Book, §61; Goodrich v. Alfred, 72 Conn. 257. It does not necessarily follow, however, that such a motion is the exclusive remedy. The situation is closely akin to one in which there has been a misjoinder of causes of action, and therefore the proper way to meet it is by demurrer. Practice Book, §100. The question, moreover, is not only one of procedure. It is a question of substantive law, i. e., whether the common courts state a course of action which is consonant with what it now appears that the plaintiff is really relying upon. Such a question is properly raised by demurrer. Goodrich v. Stanton, 71 Conn. 418.

The demurrer is sustained.  