
    ISAAC FAULKS, Plaintiff and Appellant, v. JACOB C. KAMP, Defendant and Respondent.
    Í. SUBSTANTIAL EIGHT.
    1. What obdebs do not affect it.
    
      a. Generally—Orders directing a pleading to be made more definite and certain do not.
    5. Specifically—An order directing a pleading to be made more definite and certain so that as between two causes of action contained therein—the one based on tbe affirmance of a certain contract, and the other on its rescission—it shall clearly appear upon which one the party pleading electa to proceed, does not.
    H. ELECTION OF CAUSES OF ACTION.
    1. Motion at special tebm to obtain.
    1. In a proper case may be obtained by a motion at special term to have the pleading made more definite and certain,
    
    
      a. Pboper case, what is.
    1. When the allegations of the pleading are, such as to leave it 
      
      uncertain whether the party pleading puts himself on a cause of action founded, on the affirmance of a contract therein referred to. or on one founded on, a rescission of such contract he may be compelled to make Ms election by an order, made on a motion therefor, directing him to make the pleading more definite and certain, so that it shall clearly appear whether he elects to affirm or rescind.
    Before Curtis and Sedgwick, JJ„
    
      Decided August 3, 1875.
    Appeal from an order.
    Defendant moved at special term—
    “That plaintiff be required to make his complaint more definite and certain in this, to wit: That plaintiff be required to allege in his complaint, by apt and proper allegations, so that it shall clearly appear whether the said plaintiff elects to rescind and hold void the said contract of purchase and sale in the complaint set forth, or whether he elects to affirm the same and have a judgment for a specific performance thereof, or damages for a breach thereof.”
    After hearing the parties, the special term ordered “that the plaintiff be required within ten days from the date of this order to make the complaint in this action more definite and certain, so that it shall clearly appear whether the plaintiff elects to rescind and hold void the contract of purchase and sale, or whether lie elects to affirm the same and have a judgment for specific performance thereof, or damages in case specific performance can not be decreed, &c.”
    From this order the present appeal is taken by the plaintiff.
    The contents of the complaint sufficiently appear in the opinion.
    
      
      Charles N. Judson, attorney, and E. H. Baron, of counsel for appellant, urged:
    I. There is no such thing as a motion to compel a plaintiff to elect what he will claim from the facts alleged, and proved. A motion may in some cases be made to compel a plaintiff to elect which of two inconsistent counts or causes of action he will abide by, where he has set forth two separate and distinct causes of action in his complaint and that the other or others be stricken out.
    II. What the defendant complains of is, that the plaintiff asks for alternative relief; and the order as made amounts to a decision that a plaintiff can not ask for alternative relief. The contrary is too well settled to leave the question in doubt (Young v. Edwards, 11 How. 201 ; Stevenson v. Buxton, 8 Abb. 414 ; Stevenson v. Buxton, 15 Id. 352, 355 ; N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357; N. Y. Ice Co. v. N. W. Ins. Co., 21 How. 295; Greason v. Ketaltes, 17 N. Y. 491, 492 ; Wells v. Yates, 44 Id. 525 ; Bidwell v. Astor, Mutual Ins. Co., 16 Id. 263; Barlow v. Scott, 24 Id. 40 ; Davis v. Morris, 36 Id. 571, 572).
    III. A plaintiff may even go further and claim and have allowed him both legal and equitable relief in the same action (Bidwell v. Astor Ins. Co., 16 N. Y. 263 ; Phillips v. Gorham, 17 Id. 270, 274 ; Wells v. Yates, 44 Id. 525; 56 Id. 12, 20, 21 ; Bradley v. Aldrich, 40 Id. 512; Davis v. Morris, 36 Id. 572).
    IV. The prayer for relief is not important if the defendant answers; and if he has no defense, it certainly is not (Code, § 275 ; Marquet v. Marquet, 12 N. Y. 341 ; Jones v. Butler, 20 How. 189, 191). The order, then, restricting the plaintiff to a particular or single claim for relief, and requiring him to state in his complaint that he will not ask for any other, is more than can be required of a plaintiff. It is depriving him of substantial, rights and should be reversed.
    V. Section 160 of the Code, under which this motion is made, does not authorize such a motion. That merely provides that, “ when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made more definite and certain by amendment.” This is no such case. There is no pretense that the allegations in the complaint are indefinite or uncertain. It is the prayer for relief that is complained of; and it is notpretended that that is indefinite or uncertain, but only that there is too much of it, or too many of them. The defendant treats the prayer for relief as a cause of action, and then attempts to make this motion answer for a demurrer to it as for a misjoinder. That is new practice not provided for by the Code.
    VI. The complaint, as required by section 142 of the Code, contains a plain and concise statement of facts constituting a cause of action.- The plaintiff claims, from the facts alleged, to have a contract reformed, and damages for the breach or failure to give a complete title, or that if the defendant is unable yet to give a complete title, then that the contract be annulled and canceled, and the plaintiff recover his damages for the fraud and failure of the defendant. This makes but a single cause of action (Garner v. Wright, 28 How. 92, 94: Gooding v. McAllister, 9 Id. 123 ; Caboon v. Bank of Utica, 7 N. Y. 486; Jeroliman v. Cohen, 1 Duer, 629). And it is a cause in equity, whether it is to reform the agreement and for damages (Wells v. Yates, 44 N. Y. 531, 532), or whether it is to have the agreement canceled and the plaintiff compensated in damages (Story's Equity Jurisprudence, § 692, 695). And even in such a case, where the court gives no equitable relief, the court of equity may retain the canse, and give compensation in damages (N. Y. Ice Co., v. N. W. Ins. Co., 23 N. Y. 357, 359 ; Barlow v. Scott, 24 Id. 40; 56 Id. 12, 20, 21).
    
      
      Edwin S. Babcock, attorney, and Freeman J. Fithian, of counsel for respondent, urged :
    I. An appeal does not lie from this order, because it does not -come within either of the subdivisions of section 349 of the Code. The order does not involve the “ merits of the action” or “any part thereof,” or affect a “substantial right.” It is a mere matter as to time and “form of procedure,” and in no way affects any right or merit of the plaintiff (People v. N. Y. Central R. R. Co., 29 N. Y. Rep. 418; Talman v. Hinman, 10 How. .89 ; Field v. Steward, 2 Sween. 193).
    II. But if appealable the order should be affirmed, -(1). The complaint in effect states two distinct causes of action, by stating a set of facts or transactions on which either of those two causes of action may be predicated ; and these two causes of action are inconsistent and •could not be properly united in the same action. And If they were separately stated defendant could demur •for that cause (Smith v. Hallock, 8 How. 73 ; Hulce v. Thompson, 9 Id. 113 ; Colwell v. N. Y. & E. R. R. Co., 9 Id. 312.; Adams v. Bissell, 28 Barb. 382). The case of Hall v. Hall (38 How. 97), is not applicable, because in that case the pleadings were so drawn as to give the defendant a right to elect whether or not there should be a partition. (2). The principle upon which the order appealed from rests is fully set forth in the following •authorities, which is, in substance, that a plaintiff shall sot be permitted to occupy an uncertain and equivocal position in court, or prefer inconsistent and contradictory claims in the same matter (Morris v. Rexford, 18 N. Y. 552; Bank of Beloit v. Beale, 34 Id. 473 ; Seymour v. Van Curen, 18 How. 94 ; Maxwell v. Farnam, 7 Id. 236; Chappel v. Skinner, 6 Id. 338).
   By the Court.—Sedgwick, J.

I am of opinion that the order of the court affected no substantial right •of the plaintiff. It has been several times decided in this court, that when it appears that the court below has ordered the party to make pleadings more certain and definite, no substantial right is involved. In this case the complaint alleges facts, in such a way that the plaintiff is enabled to claim that he had set out a cause of action on a contract existing at the beginning of the action. There are also in the complaint other allegations which equally enable the plaintiff to claim that the complaint notified the defendant that the plaintiff’s cause of action was placed upon the avoidance by the plaintiff of the contract because of the defendant’s fraud. If this is not correct, it is not, only, because the complaint has omitted to aver some fact which is necessary to a cause of action, upon the contract, or for the avoidance of the contract. Whether the plaintiff has a cause of action upon either set of allegations can be examined only upon demurrer. A cause of action upon the contract is not consistent with a cause of action upon the avoidance of the contract. This being the contract, the order of the court directed the plaintiff* to notify the defendant by an amendment of the complaint upon which cause of action the action was brought. Ho right of substance would be affected by the plaintiff doing what was required of him. If he did not do it at the beginning, the election would have to be made at some stage of the case. So far as the plaintiff was concerned, it was matter of form. So far as defendant was concerned, he had a right that the complaint should clearly express the cause of action— of course the order did not limit the plaintiff in asking any relief he saw fit to claim upon the cause of action he relied on.

But if a substantial right of plaintiff was affected, I think the order was correct. The complaint taken as a whole, made it evident that the plaintiff put himself upon the contract and the avoidance of the contract, leaving it uncertain upon which the action was to proceed. It could not proceed on both. The defendant had a strict right to know, at the start, what case the plaintiff meant to go upon.

The order should be affirmed, with ten dollars costs and disbursements.

Curtis, J., concurred.  