
    Sanford v. Fourth Nat. Bank et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    Action—Election of Remedies.
    Plaintiff alleged that one S. stole from her certain stock certificates, and pledged the same to defendants F. & K. to secure a loan, and that S. deposited in defendant bank the money so loaned to him by F. & K. The prayer of the complaint was that plaintiff recover from F. & K. the shares of stock, or their value; or if plaintiff is not entitled to recover from F. & K., then that the bank be required to pay over the amouni so deposited with it. Held, that the complaint did not state a cause of action against the bank, as the statement of the cause of action against F. & K. was an election of plaintiff’s right to pursue the stolen property, and she could not at the same time ratify the title of F. & K. thereto and sue for the proceeds.
    Appeal from special term, Hew York county.
    Action by Mary Sanford against A. Morton Ferris, William A. Kimball, and Floyd Ferris, partners as A. M. Ferris & Kimball; George II. Mills; William P. Robeson; Albert H. Smith; the Fourth Hational Bank of the city.of New York; John Hoey, president of the Adams Express Company; and William Watson, as assignee. The dernurr• r of defendant bank to the complaint was sustained, and plaintiff appeals. The prayer of the complaint was as follows: “Wherefore this plaintiff demands judgment as follows: First. That she may be declared to be the owner of the said one hundred shares of stock of the said Adams Express Company, and that the said firm of A. M. Ferris & Kimball be required to deliver the said certificate to her, or, in case they have disposed of said certificate so that plaintiff cannot secure a transfer of said-, stock, that they may be required to pay to her the sum of fifteen thousand, dollars ($15,000) as the value thereof, together with the interest from the-15th day of November, 1890, upon her transferring to them, in such manner as to the court may seem just, all moneys which she may be entitled to receive under the aforesaid assignment of the said firm of Mills, Robeson & Smith to the defendant William Watson. Second. That said Adams Express Company be enjoined from transferring said stock to any one but this plaintiff, and said A. M. Ferris & Kimball from parting with said certificate. Third. That, in case it shall be decided that this plaintiff is not entitled to-recover said stock from the said Adams Express Company or said firm of A. M. Ferris & Kimball, it may be declared that the sum of twenty thousand' dollars, ($20,000,) received by the said Fourth National Bank on the said check of the firm oí A. M. Ferris & Kimball, belongs to this plaintiff and the said firm of A. M. Ferris & Kimball, to be apportioned between them as to-this court may seem just. Fourth. That such other and further relief in the premises maybe granted, affecting the rights of the various parties to this action, as to the court may seem proper, and that plaintiff may have the costs, of this action.”
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      Wingate & Cullen, (George W. Wingate, of counsel,) for appellant. Bristow, Peet & Opdyke, (David Willcox, of counsel,) for respondents.
   Barrett, J.

The plaintiff, in substance, alleges that she was on the 14th of November, 1890, the owner of 100 shares of the stock of the Adams Express Company, that on that day one Albert H. Smith stole the certificate-representing those shares, and borrowed money thereon from the defendants-Ferris & Kimball; and that she has demanded the certificate from Ferris. & Kimball, but that they have refused to give it to her. Upon these averments she demands judgment that Ferris & Kimball be required either to-deliver the certificate to her, or to pay her its value. Having thus formulated her case against É’erris & Kimball, she proceeds to state that Smith’s firm deposited the money which he so borrowed from Ferris &Kimball in the defendant bank, and on this latter averment she demands a further judgment that, in case she fails in her action against Ferris & Kimball, the bank be required to pay her the amount so deposited. This novel complaint is sought to be justified and sustained by the frank avowal that the case is troublesome, and that the plaintiff is not quite sure how she is “coming out” in her action against Ferris & Kimball. So she thought it best to state all the facts and leave the court to work out for her a safe result. This is carrying the “plain-statement” heresy, begotten of the Code, that the plaintiff may simply tell his whole story in his own way, and on it ask what he wants, to a somewhat grotesque extreme. Thedifficulty is that the plaintiff has stated an apparently good cause of action against Ferris & Kimball. That necessarily involves an election to pursue her stolen property. She cannot have both her property and its proceeds. Before she could have any possible claim against the bank, she was bound to elect, and, if she elected to follow the proceeds of the theft in the hands of a third party, she thus ratified Smith’s act in borro wing the money from Ferris & Kimball, and acknowledged the latter’s title. Bu.t she has done the very reverse of this, and consequently she has no cause of action against the bank. At all events, there is no such .thing known to-the law as “an alternative cause of action,” such as is here pleaded. The complaint must state facts constituting some present cause of action against a defendant. It will not do for a plaintiff to say that, in case of defeat with regord to one cause of action pleaded against A. he will- then (and not until then) have another and different cause of action against B. That is not a statement of facts constituting a present cause of action against B., either at law oi in equity. But, further, the plaintiff has not even pleaded her doubts. In his brief her learned counsel says that her right to attack the title of Ferris & Kimball to this certificate is a very doubtful question of law. But this expression of doubt is not predicated of any averment in the complaint. Whether the certificate was feloniously or but fraudulently taken, whether it was in fact negotiable or non-negotiable, whether Ferris & Kimball obtained a good title to it or not, are all matters as to which the complaint evinces no uncertainty. On the contrary, there is a clear, non-demurrable cause of action (prima facie) stated as against Ferris & Kimball. It follows that no cause of action is stated as against the bank. If, however, the plaintiff had not pleaded alternately, but had alleged the facts as to the loan and deposit as a present and distinct cause of action against the bank) the demurrer would have to be sustained upon the second ground specified, as well as upon the first; for in that case the. two causes of action would have been improperly joined, they being, as we have seen, inconsistent with each other, and neither one affecting all the defendants. The interlocutory judgment appealed from should therefore be affirmed, with costs. All concur.  