
    HARRIS v. ELDRIDGE.
    
      N. Y. Supreme Court, Third Department, Fourth District;
    
    
      Special Term, January, 1879.
    Parties. — Single Instrument. — Pleading.—Code on Civ. Pro., § 537.
    If a guarantor engages alone by a separate writing, distinct from the instrument signed by the maker, although indorsed thereon, his contract is a separate cause of action ; and in an action against both the complaint is demurrable, on the ground that causes of action have been improperly united.
    
    Demurrer is proper, irrespective of whether the causes of action are separately stated or commingled.
    
      The substantial remedy by demurrer should not be denied merely because the party whose pleading is demurred to has disregarded the rules of practice.
    
    Motion for judgment.
    Plaintiff moved against the defendant Eldridge, for judgment for the frivolonsness of the demurrer, pursuant to section 537 of the Code of Civil Procedure.
    • The action is brought upon a promissory note made by the defendant Alger, and guaranteed by the defendant Eldridge. The complaint contained but one count. It is averred: (1) that the defendant, Alger, made his promissory note for $1,257, at three months, dated August 27, 1878, and the note is set out by copy in full, in words and figures ; (2) that it was delivered to Eldridge, who indorsed his guaranty thereon, and the guaranty is also set out by copy, as follows:
    “Saratoga Springs, Aug. 27th, 1878.
    “For value received I hereby guarantee the payment of the within note. In renewal.
    “Thomas Eldridge.”
    (3) That the note was transferred to the plaintiff before it became due, and that he is the owner and holder of it.
    Judgment was demanded against the defendants for the amount with costs. The defendant Eldridge, demurred, alleging for grounds of demurrer, in effect, that it appeared on the face of the complaint that several causes of action had been improperly united.
    
      W. M. Searing, for plaintiff.
    
      Van Rensselaer, Hill & Roads, for defendant Eldridge.
    
      
       This decision applies, under the Code of Civil Procedure, the same rule of non-joinder of a separate guarantor with his principal that was applied under the former Code, § 120, and L. 1837, c. 92. The language of the provision of the Code of Civil Procedure, § 454, which supersedes the former, is as follows : “Two or more persons severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument, or by a party thereto to recover against other parties liable over to him, may, all or any of them, be included as defendants in the same action, at the option of the plaintiff.” See also Barton v. Speis, 1 Hun, 60, 61; Decker v. Gaylord, 8 Id. 110; Brown ®. Champlin, 66 N. Y. 214 ; Laurence v. Gallagher, 42 Super. Ct. (J. & S.) 309.
    
    
      
       Former decisions have often overruled demurrers on the ground that the objectionable pleading might have been corrected by motion. The decision in the text proceeds on a more liberal but not a more lax doctrine, that allows the court to correct a demurrable fault, on demurrer, although other faults were involved, and other remedies might be used. Serious faults in pleading are almost always committed in a way which violates more than one canon of correct practice, and involves the adverse party in more than one inconvenience; and the tendency of the courts now is, while applying liberal rules of construction, and leniently dealing with verbal and formal defects, to recognize the right of each party to substantially good pleading on the part of the other ; and when a substantial defect is objected to in any proper manner, to deal with it directly, instead of turning the parties over to another form of objecting, on the ground that it would have been more convenient in the first instance.
      Many pleadings which might be the subject of a motion to make more definite and certain, are equally obnoxious to a demurrer, not indeed because of want of definiteness and certainty, alone, but because of that kind of uncertainty which is fatal to the substance of the pleading, namely : in a point vital to the existence of a cause of action or a defense.
      For illustrations see City of Buffalo v. Holloway, 7 N. Y. 493; Butler v. Viele, 44 Barb. 166; Simmons v. Fairchild, 42 Id. 404; Commercial Bank of Rochester v. City of Rochester, 41 Id. 341; Hofheimer v. Campbell, 50 N. Y. 274.
    
   Bockes, J.

Two separate causes of action are united in the complaint; one against Alger as maker ; the other against Eldridge as guarantor. The note and the guaranty indorsed on it are separate instruments and constitute separate causes of action (Allen v. Fosgate, 11 How. Pr. 218; De Ridder v. Schermerhorn, 10 Barb. 638; Tibbits v. Percy, 24 Id. 39). Those cases are not overruled by Carman v. Plass (23 N. Y. 286), nor by Decker v. Gaylord (15 N. Y. Sup. Ct. [8 Hun] 110), where the actions were brought against lessee and guarantor, both having executed the same instrument. The case in hand is like Barton v. Speis (12 N. Y. Sup. Ct. [5 Hun] 60). Nowhere the facts stated show a good cause of action against each defendant separately; but not a good cause of . action against them jointly. Here then are two causes of action improperly united in the same complaint.

The next question is, may the defendants demur to the pleading? They might do so undoubtedly had the causes of action been separately stated ; that is, in separate counts. This was held in Barton v. Speis, above cited ; but it was then said, per Mullen, J., that a complaint can only be demurred to for an improper joinder of causes of action when they are set out in separate counts ; that when contained in a single count (such is the case at bar), the remedy of the defendant was by motion. The learned judge cites Cheney v. Fisk (22 How. Pr. 236), in support of this ruling. It is doubtful whether that case so holds. That rule would be a sound one when different causes of action are stated in the same count against one and the same defendant (Bass v. Comstock, 38 N. Y. 21. See also remark of Marvin, J., in Hess v. Buffalo & Niag. Falls R. R. Co., 29 Bard. 395). The question, however, is now put at rest by the court of appeals. It is now decided by that court that a party may demur for an improper uniting of causes of action, although both be stated in the same count (Wiles v. Suydam, 64 N. Y. 173; Goldberg v. Utley, 60 Id. 427). In the last case cited Judge Church says : “If the complaint contains several causes of action improperly united contrary to the code . . . , the vice may be reached by demurrer, and the failure'. . . to state them separately and number them would not be an answer to it, nor would a failure to move to correct the complaint in this respect defeat the effect of a demurrer.” The learned judge completely covers the case in the additional remark, that the plaintiff cannot deprive the defendant of the benefit of a demurrer upon this ground ; and further, that a substantial remedy cannot be prevented by a neglect to observe the rules of practice, nor in á case like this would the defendant be regarded as waiving such remedy by not making a motion. The motion for judgment must be denied.

Motion denied with costs. 
      
       Reported below in 3 Hun, 604 ; S. C., 6 Sup'm Ct. (T. & C.) 292.
     