
    Cora L. Lewis, Respondent, v. Celia M. Howe and Others, Defendants, Impleaded with Etta C. Portep and Others, Appellants.
    
      A complaint, asking that the plaintiff he adjudged to he the owner of certain land, that the defendants’ adverse claim thereto he adjudged to he had, and that a devise:, thereof to the defendants’ ancestor he adjudged to he void, states hut a single cause-of action.
    
    A complaint alleged that the plaintiff was the owner in fee of certain real property, and that a person who did not have any title thereto had assumed to-devise it by his last will and testament, and that the defendants were the heirs, at law of the devisee. The relief demanded was that, if the plaintiff should, be determined to be the owner of the premises, it should be adjudged that the-defendants’ adverse claims were of no force and validity, and also that the-cloud upon the plaintiff’s title created hy the devise he removed, and that she-, he adjudged to be the owner of, and entitled to, the possession of the premises. Held, that the complaint stated hut a single canse of action, although it demanded different forms of relief.
    Appeal by the defendants, Etta C. Porter and others, from am •order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oswego on the-3d day of March, 1900, denying the defendants’ motion to compel the plaintiff to separate her causes of action and serve an amended, complaint stating separately her causes of action.'
    
      O. B. Gould, for the appellants.
    
      Giles S. Piper, for the respondent.
   McLennan, J.:

The motion Was properly denied upon the merits. .

The complaint states but a single cause of action, although several-distinct items of relief are demanded.

The cause of action alleged is, in substance, that the plaintiff being-the owner in fee of certain, real property (describing it) the appellants unjustly claim to own it under and by virtue of a devise contained in the last. will and' testament of one Charles Gr. Case,., deceased; that such will was duly admitted to probate and recorded,, and so upon the record the devisee appears as the owner of the premises, although, as is alleged, such devise is void and conveyed no title,, for the reason that the testator, at the time the will was made, or at any time subsequently, did not own the premises.

Every fact alleged in the complaint is directed to the proposition that Charles Gh Case, deceased, did not own the property at the time he assumed to devise it, but that the plaintiff’s grantor did. If the testator was such owner at the time, then the appellants became such ■owners, they being, the heirs of Mary Juliet Porter, the devisee named; if he did not, then, concededly, they have no right, title or interest to or in such property, and the plaintiff is the owner of the same.

The plaintiff asks, if it shall be determined that she is the owner ■of the premises in question, that it shall be adjudged that the appellants’ claims, which are adverse to her, are of no force and validity, and also that the cloud upon her title created by the devise be removed, and that it be adjudged that she is the owner of, and entitled to possession of, the premises.

In order to obtain any part of the relief demanded precisely the same facts would have to be proven as would be necessary in order to entitle her to any other part of such relief. It cannot be held that the same state of facts constitute separate and distinct causes of action, because they may entitle a plaintiff to one or more different or distinct forms of relief.

The test, as applied to the case at bar, is whether or not the plaintiff, if she had brought an action to conqDel the determination of the adverse claims of the appellants, and had alleged the same facts as are contained in the complaint, all of which would have been necessary, would have been permitted to maintain another action, alleging precisely the same facts, to remove the cloud upon her title.

We think it clear that the' first action would have been a bar to the second.

In Richards v. Kinsley (14 N. Y. St. Repr. 701) it was held that separate causes of action exist only when the plaintiff might demand separate judgments for different sums of money, or different forms of relief in different actions, if he did not elect to include his whole claim against the defendant in a single action. (Robinson v. Brown, 166 N. Y. 159; Gilbert v. Pritchard, 41 Hun, 46; Welch v. Platt, 32 id. 194.)

The cases cited, wé think, show beyond controversy that the complaint contains but a single cause of action, although different forms-of relief, ah dependent, however, upon the same state of facts,, are demanded.

We deem it unnecessary to consider the preliminary objections-urged by the respondent’s counsel to the granting of the motion.

It follows that the order appealed from should be affirmed, with costs.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  