
    Charles Sisson, Appellant, v. Carroll D. Bassett and Others, Defendants, Impleaded with Lawrence Barnum, Respondent.
    Third Department,
    September 15, 1909.
    Pleading—superfluous allegations — complaint stating action in replevin —joinder of actions — replevin and suit for equitable relief—when legal remedy adequate.
    Where the allegations of a complaint entitle the plaintiff to some relief and the relief demanded is in harmony with the allegations, the pleading is not demurrable as failing to state a cause of action merely because it contains unnecessary and irrelevant matter and demands judgment for more than the facts warrant.
    
      Thus, a complaint which in substance alleges that certain stock was transferred by a former owner to the plaintiff, who is entitled to possession thereof, and that his transferor while owner left the same with the defendant B. for safekeeping, who illegally transferred the same to a third party, who now claims to he the owner thereof; that a demand of the plaintiff for a delivery of the stock has been refused, and that the present holder is attempting to have the same transferred to his name upon the hooks of the corporation; that the plaintiff is unable to replevy the same by reason of the fact that the holder is without the State; that the officers of the corporation have informed the plaintiff that they will transfer the stock on the hooks unless restrained or the rights of the parties are determined in some action, and that the value of the stock is at least a certain sum, and which demands judgment among other things for the value of the stock in case it is not delivered to plaintiff states a cause of action against the bailee who wrongfully transferred the stock, and the relief demanded is sufficiently comprehensive to permit a money judgment in case the property itself is not delivered to the plaintiff.
    Such complaint may be sustained on demurrer as stating a cause of action1 in replevin although it contains allegations irrelevant to such action.
    A cause of action in replevin cannot be joined with a suit in equity, especially where both causes do not affect all the parties defendant.
    The complaint aforesaid does not state grounds for equitable relief in that the damage sustained by the plaintiff is not irreparable and he has an adequate remedy at law. Equity will not interfere to prevent'an injury to or sale of ordinary personal chattels or property, since an action at law for damages is an adequate remedy unless special or extraordinary reasons are shown
    Such complaint may he sustained as one stating an action in replevin although the allegations looking to equitable relief as against some of the defendants are insufficient to warrant such relief.
    The statement in said complaint that the plaintiff is unable to replevy said stock because it is out of the State does not destroy the action as one in replevin, nor does it constitute grounds for equitable relief in the absence of facts showing that a money judgment will not give full redress.
    Appeal by the plaintiff, diaries Sisson, from an interlocutory judgment of the Supreme Court in favor of the defendant Lawrence Barnum, entered in the office of the clerk of the county of Chenango on the 27th day of Jiuie, 1908, upon the decision of the court, rendered after a trial at the Madison Special Term, sustaining the said defendant’s demurrer to the complaint.
    The complaint alleges that one Blake was formerly the owner of ninety shares of the capital stock of the defendant the Norwich Cas and Electric Company, a domestic corporation, said shares and stock being represented by two certificates; that said Blake on or about May 10,- 1905, for a sufficient consideration, sold and transferred said stock to the plaintiff, who then became and now is the owner and entitled to possession thereof; that said Blake while owner of the stock had left the same with the defendant Barnum for safe keeping; that said Barnum without right or authority wrongfully and illegally sold or transferred or surrendered said stock to one Bassett, who assumes and claims to be the owner and holder thereof; that said attempted transfer was fraudulent and void as against the plaintiff; that plaintiff has demanded of the said Bassett delivery of the said stock, which has been refused; that said Bassett is attempting to have said stock transferred upon the books of said corporation and the certificates thereof which had been issued to said Blake canceled and a new certificate or certificates issued to said Bassett in place thereof, and that the said Bassett is a non-resident of the State of New York and has the certificates of said stock in his possession outside of the State, so that the plaintiff is unable to replevy or proceed in a regular action for the possession of the said stock; that the officers of said corporation have informed plaintiff that upon presentation of the certificates of said stock they would transfer the same upon the books of the company unless restrained, or unless some action be brought to determine the rights and interests of the parties; that the value of said stock is at least §3,000.
    The action is against Barnum, Bassett, the Norwich Gas and Electric Company and the officers of said company.
    Judgment is demanded in the complaint as follows: “That the defendant, the Norwich Gas & Electric Company, the defendants Morris and Summers, as its officers, be restrained from transferring and canceling said stock, or issuing new stock to either the defendants Barnum or Bassett herein, or to any other person presenting or attempting to present said stock for transfer or cancellation or in any manner interfere with. the said stock ; that it be determined in this action that the plaintiff is the just and rightful owner of said stock and entitled to the possession thereof, and in case the said stock is not delivered to the plaintiff, that it then be adjudged and determined that the said stock is of the value of Three thousand dollars (§3,000), and that the said Barnum and Bassett be adjudged to pay to the plaintiff the value of said stock, to wit: Three thousand dollars (§3,000), and for such other and further relief herein as to tlie Court may seem just and proper, with the costs of this action.”
    The defendant Barn am has demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action, and also on the ground that causes of action have been improperly united.
    
      Fitch & Kiley [Judson A. Gibson of counsel], for the appellant.
    
      Pavey & Moore [Henry W. Coley of counsel], for the respondent.
   Cochrane, J.:

The complaint contains allegations sufficient to constitute a cause of action against the demurrant Barnum for the recovery of the property, and the relief demanded is sufficiently comprehensive to permit a money judgment for the value thereof in case the property itself is not delivered to plaintiff. Where the facts stated entitle the plaintiff to some relief, and the relief demanded is in harmony with the allegations, a complaint is not demurrable merely because it contains unnecessary and irrelevant allegations and demands judgment for more than the facts warrant. (Pape v. Pratt Institute, 127 App. Div. 147; Doyle v. Delaney, 112 id. 856; Hotel Register Co. v. Osborne, 84 id. 307; Middleton v. Ames, 37 id. 510; Wisner v. Consolidated Fruit Jar Co., 25 id. 362.)

In the case last cited an attempt had been made to plead an equitable cause of action. It was held, however, that the cause of action alleged ivas legal. Mr. Justice Follett, in writing for the court, said : “ It is true that the plaintiff, in addition to his demand for a money judgment, also demands an accounting, but this does not make the action an equitable one. In case a plaintiff, by accident or design, sets forth a legal cause of action in his complaint which he erroneously supposes to be an equitable cause of action, and demands a money judgment, a demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action will not be sustained. * * * On the facts set forth in the complaint the plaintiff has no equitable cause of action, but has a legal one, and having demanded a money judgment as well as equitable relief the complaint is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. (Porous Plaster Co. v. Seabury, 43 Hun, 611; Wetmore v. Porter, 92 N. Y. 76.)”

This complaint, therefore, may be sustained as stating a common-law cause of action in replevin notwithstanding that it may contain allegations irrelevant to such a cause of action, and the demurrer must be overruled so far as it attacks the complaint for insufficiency.

It is said, however, that the complaint also contains an equitable cause of action against other defendants and that the demurrer should be sustained on the ground that causes of action have been improperly united. If it is true that the complaint alleges a cause of action in equity the demurrer must be sustained, because it is very clear that under section 484 of the Code of Civil Procedure a cause of action for the recovery of a chattel cannot be united with a cause of action of a different nature; neither would both of such causes of action affect all the parties hereto as required by that section. But the complaint does not state any grounds for equitable intervention. The injury sustained by the plaintiff is not irreparable and he has an adequate remedy at law. In 22 Cyc. (p. 817) in a foot note the rule is stated as follows: Equity will not interfere to prevent an in jury to or sale of ordinary personal chattels or property since an action at law for damages is an adequate remedy.” Equity of course will interfere where special or extraordinary reasons are shown, but this complaint alleges a definite value for the stock which value may be recovered as against this demurrant whose pecuniary responsibility is unquestioned, and there is nothing to indicate that such pecuniary compensation, will not adequately compensate the plaintiff or that there is any peculiar or special reason why be should desire to retain the stock rather than to receive its pecuniary equivalent. The allegations pertaining to equitable relief as against other defendants being insufficient to warrant relief of that nature should, therefore, be disregarded and the complaint construed as containing only a common-law cause of action. (See cases above cited.)

The statement in the complaint that because the stock certificates are out of the State plaintiff is unable to replevy or proceed in a regular action for the possession of the said stock ” does not destroy the character of the complaint as being in replevin because it merely describes the inability of plaintiff to compel the delivery to himself of the specific property instead of its pecuniary value which latter may be recovered in such an action if the defendant fails to deliver the specific property or plaintiff is unable to recover it. Neither is such statement sufficient ground for equitable relief in the absence of facts showing that a money judgment will not fully redress the grievance of plaintiff.

This is not a case where the facts alleged constitute two or one of two inconsistent causes of action and the problem is to determine which shall be recognized. Only one cause of action is here alleged notwithstanding that irrelevant facts are contained in the complaint; that judgment is demanded for more extensive relief than" the facts warrant, and that unnecessary parties have been brought before the court.

The interlocutory judgment should be reversed, with costs, and the demurrer overruled, with costs, and with leave to the respondent to withdraw the demurrer and serve an answer within twenty days on payment of costs in this court and at Special Term.

All concurred; Smith, P. J., and Kellogg, J., in result.

Interlocutory judgment reversed, with costs, and demurrer overruled, with, costs, and with leave to respondent to withdraw the demurrer and serve an answer within twenty days on payment of costs in this court and at Special Term.  