
    SUPREME COURT.
    Daniel D. Dorman agt. Jephtha Kellam.
    Several causes of action upon promissory notes may be united in the same complaint. They are not improperly united simply because they are not separately stated. There can be no necessity for dividing an action upon two promissory notes, and making two separate actions of it.
    If two distinct causes of action upon two promissory notes are united in the same complaint, the defendant cannot demur to it on the ground that the causes of action are not separately stated, or plainly numbered. His remedy is by . motion to set aside the complaint. And the same remedy must be resorted to where the complaint does not name the county in which the plaintiff desires the trial to be had; or the omission to folio the complaint according to rule41 of the court. (The practice adopted in Benedict agt. Seymour, 6 How. Pr. R. 298—held to be corred; and the cases of Burkee agt. S. fy TV. R. R. Co., 4 id. 226; Pike agt. Van TVormer, 5 id. 171; Getty agt. TheH.R.R. R. Co., 8 id. 177; Van JVamee agt. Peoble, 9 id. 198; and Acome agt. The Am. Mineral Co., 11 id. 24—which hold adversely upon this question, overruled—Mason, J., dissenting.)
    
    
      Sixth District General Term., at Norwich,
    
    
      Oct., 1856.
    Demurrer to complaint.
    1st. That several causes of action have been improperly united; and,
    2d. That the causes of action are not separately stated.
    
      S. H. White, for plaintiff.
    
    C. H. Bell, for defendant.
    
   By the court—Balcom, Justice.

The only important ques-' tion in this case is,Awhether the complaint is demurrable, for the reason that it contains two causes of action upon two promissory notes; which causes of action are numbered, but not separately stated, as they should be, according to rule 86 of the court. (See Code, § 167, sub. 7.)

Several causes of action are improperly united in a complaint when they differ in character. (Moore agt. Smith, 10 How. Pr. Rep. 361.)

To illustrate: A cause of action upon a promissory note, and one for an assault and battery, cannot be united in the same complaint. Such a complaint is demurrable. (Code, § 144, sub. 5.) But several causes of action upon promissory notes may be united in the same complaint. (Code, § 166, sub. 2.) They are not improperly united, simply because they are not separately stated. This is shown by § 172 of the Code, which provides,—If the demurrer be allowed for the cause mentioned in the fifth subdivision of § 144, the court may, in its discretion and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned. There can be no necessity for dividing an action upon two promissory notes, and making two separate actions of it.

Section 144 of the Code prescribes the causes for which the defendant may demur to the complaint; and it is not made a ground of demurrer that several causes of action in the complaint are not separately stated or plainly numbered, as is required by the last clause of § 167 of the Code, and rule 86 of the court. Hence, if two distinct causes of action upon two promissory notes are united in the same complaint, the defendant cannot demur to it on the ground that the causes of action are not separately stated, or plainly numbered; but he must make a motion to set aside the complaint for such cause. The omission to separately state several causes of action in the complaint, or to plainly number them, is not the ground of a demurrer under the Code. Nor is the neglect to name the county in the complaint in which the plaintiff desires the trial to be had; or the omission to folio the complaint according to rule 41 of the court, a ground of demurrer. (See Code, § 142, sub. 1.) The remedy of the aggrieved party for such matters is by motion. (See Code, § 160; Boice agt. Brown, 7 Barb. 80; 11 How. Pr. R. 89, 408, 567; 12 id. 22, 28, 48, 208.)

The correct practice was adopted in Benedict agt. Seymour, (6 How. Pr. R. 298,) where defences were struck out of an answer upon a motion for that purpose, because they were not separately stated according to the last clause of § 150 of the Code. (See 3 Duer, 645.) This practice was sanctioned in Waller agt. Raslcan, (12 How. Pr. R. 28.) The case of Landan agt. Levy, (1 Abbott’s Pr. R. 376,) does not necessarily conflict with the case of Benedict agt. Seymour, or Waller agt. Raskan, before cited.

I am compelled to differ with the learned justices who delivered the opinions in the following cases : 8 How. Pr. R. 177; 9 id. 198; 4 id. 226; 5 id. 171; 11 id. 27. These are all special term cases. We can, therefore, overrule them without creating much serious confusion in the practice; and I think we ought to do so, because they do not harmonise with the mandates of the Code.

For these reasons the judgment of the special term should be affirmed, with costs. Judgment accordingly.

Gray, Justice, delivered an elaborate opinion, by which he came to the conclusion that the judgment of the special term should be affirmed, with costs.

Shankland, Justice, concurred. But Mason, Justice, dissented.  