
    John Denham and others, ex’rs, &c. appellants, vs. Benjamin M. Stilwell, respondent.
    Although a complaint, in addition to alleging a sale hy the plaintiffs, by virtue of a power in a will, of several lots of land to the defendant, at public auction, his payment of ten per cent of the purchase money, and failure to pay the residue, a tender of a conveyance to him and demand of such residue; also alleged that the defendant having refused to pay such residue, on the ground of a defect in the title, the question of its validity was submitted to an arbitrator, the defendant agreeing to pay the unpaid residue of the purchase money, with interest, and the arbitrator’s fees, in case he should decide such title to be good, and the plaintiffs agreeing to repay the defendant the sum paid by him, with interest, and such arbitrator’s fees, in case he should decide the title not to be legal, and that such arbitrator decided that the title was good; SeU, on demurrer, that the complaint stated but one cause of action, which was a good one, upon the award.
    (Before Robertson, Ch. J. and Moncrief and Monell, JJ.)
    Heard January 16, 1864;
    decided December 30, 1864.
    Appeal from an order made at a special term, allowing a demurrer to the complaint.
    The complaint alleged,
    
      First. That in or about the month of March, 1861, Thomas Gumming departed this life, leaving his last will and testament, bearing date the tenth day of January, 1861, whereby he authorized and empowered his executors, therein named, among other things, to sell and dispose of the real estate of which he should die seised ; that the plaintiffs were appointed by said will executors thereof; that on or about the first day of April,
    1861, the said will was duly proven before the surrogate of the city and county of Hew York, (that being the county where the said Thomas Gumming resided at the time of his death,) as a will of real and personal property; and that on the same day letters testamentary thereon were duly issued by said surrogate to the plaintiffs, who duly qualified as such executors, and took upon themselves the execution thereof.
    That the said Thomas Gumming, at the time of his death, was lawfully seised and possessed, in fee simple, of the equal undivided one half part of certain lots of land situate on the northerly side of 114th and 116th streets, in the Í2th ward of the city of Hew York, and which were bounded as follows: [Describing them.] That, under and by virtue of the power and authority given to the plaintiffs in and by said last will and testament, they, on or about the thirtieth day of October, 1862, by E. H. Ludlow, auctioneer, proceeded to sell and dispose of the said lots of land and premises at public auction, at the . Merchants’ Exchange salesroom, Ho. Ill Broadway, in the city of Hew York. That at such sale the defendant became the purchaser of the said undivided half of said lots of land and premises, for .the price or sum of twenty-three hundred and thirty-five dollars. That, by the terms and conditions of such sale, ten per cent of the purchase, money was to be paid on the day of sale, and the balance thereof on the twentieth day of November, 1862, when the deed for said lots of land and premises was to be delivered. That the defendant paid on said thirtieth day of October, 1862, ten per cent of the purchase money of said lots, as required by said terms of sale; but that on the twentieth day of November, 1862, he was not ready to complete said purchase. That on the twenty-eighth day of April, 1863, the plaintiffs tendered to the defendant a conveyance of the undivided half of said lots of land and premises, duly executed by them as such executors as aforesaid ; also, a quit-claim or release executed by the widow and the children and devisees of said Thomas Gumming, deceased, and demanded from him payment of the balance of said purchase money, to wit, the sum of two thousand one hundred and one dollars and fifty cents; but that the said defendant wholly refused to pay the same or any part thereof.
    
      Second. And the plaintiffs further showed, that the said defendant having refused to pay the balance of the purchase money for said lots, as thereinbefore mentioned, upon the ground that the title of said Thomas Gumming to said lots of land was defective, on or about the first day of May, 1863, the defendant and the plaintiffs made and entered into an agreement in writing, whereby they agreed that they would submit the question as to the validity of the title to said lots to William Mitchell, Esq. of the city of New York, counsellor at law, and would abide by his decision. And in case he should decide that the title to said lots was good and valid, that the said defendant would immediately pay the balance of said purchase money, with interest thereon, from May 1,1863, and would also pay the fee of said William Mitchell,' Esq. And in case the said Mitchell should decide that said title was not good and valid, that the plaintiffs should repay to said defendant the money already paid by him, with interest thereon from May 1, 1863, and also the fee of said Mitchell. That, in pursuance of said agreement, the plaintiffs and defendant did submit the question as to the validity of the title to said lots to said William Mitchell. And that, on or about the thirteenth day of J une, 1863, the said William Mitchell made and rendered his decision, in writing, that the title to said lots was good and valid; that the objections thereto were not good; and that the defendant should be - compelled to complete his purchase. That the plaintiffs paid to said William Mitchell the sum of fifty dollars, that being the amount of his fee ; but that the defendant, notwithstanding such decision, still refuses to pay the said balance of the purchase money, or the said sum of fifty dollars, so paid to the said William Mitchell, for his fee as aforesaid.
    : Wherefore, the plaintiffs demanded judgment against the defendant for the sum of two thousand one hundred and fifty-one dollars and fifty cents, with interest on the sum of $2101.50. from May 1, 1863, and on the sum of $50, from June 13, 1863.
    The defendant demurred to the complaint, on the ground that it did not state facts sufficient to constitute á cause of action.
    ■ The court, at special term, allowed the demurrer; and the plaintiffs appealed.
    
      W. McDermott, for the plaintiffs, (appellants.)
    
      J. L. Burrill, for the defendant, (respondent.)
   Robertson, Ch. J.

If I were satisfied that the complaintj in this case, by any fair legal construction of its language, .contained two alleged causes of action,- as numbered first and second, separately stated and distinguished by appropriate words, (Benedict v. Seymour, 6 How. Pr. R. 298,) I should also be satisfied that the statement of each was demurrable; one, because a party cannot recover in an action at law for the price, of land, without tendering a conveyance for it on the day fixed by the contract, and the other as wholly unintelligible, without some reference to the former, which it does not make. But I am .convinced, on full reflection, that there is but one cause of action stated, or intended so to be, and that occupies the whole complaint.

Numbering causes of action, besides stating them separately, is not required by the Code, but only by a rule. (19.) Consequently, an omission is a mere irregularity, the remedy for which is to return the pleading, (Corbin v. George, 2 Abb. 466,) or move to set it aside for irregularity, (Blanchard v. Strait, 8 How. Pr. R. 85,) or at most to strike out all allegations not pertaining to a single cause of action. (Benedict v. Seymour, ubi sup.) When inserted, they do not necessarily designate separate causes of action.

The Code requires the construction of pleadings,' to determine their effect to be liberal, in order to accomplish substantial justice. (Code, § 159.) A construction of a pleading, which should so divide it as to make one part an insufficient statement of a cause of action, and the other unintelligible, when, by uniting them, a good cause of action would be made out, would not comply with such rule. The demurrer, in this case, objects to the whole complaint, that it does not contain facts sufficient to constitute a cause of action. It would seem to be illogical to sustain it, if the complaint did contain such facts. How far a demurrer can be taken in such form, even if two counts, in a declaration avowedly separate, contain, together, facts enough to constitute a cause of action, has not, so far as I have been able to ascertain, been adjudicated. All other causes of demurrer mentioned in section 144 of the Code, except the third, of course apply to the whole complaint as an entirety. The complaint is required to contain a plain and concise statement of facts constituting a cause of action, (§ 142.) But the plaintiff is authorized to unite several causes of action in the same complaint, which are required to be separately stated, (§ 167.) Surely, the demurrer ought to be to the statement of each separate cause of action as insufficient. The rule that there can be no demurrer to a demurrer, is abrogated when the causes of demurrer are forbidden by statute.

There is no technical mode of distinguishing and separating causes of action. (Hall v. McKechnie, 22 Barb. 244.) The proper mode of doing that has been held to be, to commence the statement of each cause of action with words adapted to separate and distinguish it from others. (Benedict v. Seymour, ubi sup.) A mere number (second) and the words “ and the plaintiff further shows,” as in this case, are not so distinctive. The latter was the common commencement of every allegation in a bill in equity. Such words cannot be construed to mean any thing more than the commencement of an additional allegation, particularly where the effect of a more extended construction would be to destroy a complaint containing one good cause of action by dividing it into two parts, neither of which contained enough facts to constitute a good cause of action. If each of such parts had in this case contained a statement of a good cause of action, a motion to strike out one for not being separately stated would be more sustainable than a demurrer to each as being separately stated. The whole idea of there being two causes of action stated separately rests safely on the insertion of the word “ second,” which forms no part of the allegations. If that were struck out, there would be no room for an argument.

Of course, in this view, the allegations of a tender, demand and refusal are superfluous. The contract to buy the premises in question formed part of the consideration of the new conditional agreement to pay the purchase money, if and when the referee should decide the title to be good. The defendant's liability arose out of his promise, not the award. It was not an arbitration, strictly, but the reference of a collateral fact, whose determination created of itself no new obligation. (Elmendorf v. Harris, 5 Wend. 516. Duffield v. Whitlock, 26 id. 55.) The determination by such referee that the defendant should be compelled to complete his purchase exceeded his authority, but did not make the decision as to the title void, because not. necessarily connected with or affecting it. (Nichols v. The Rensselaer Mut. Ins. Co., 22 Wend. 125.) No demand was therefore necessary on the making of the decision, which might have been necessary in an award. (Same case.) The facts so set forth, in my view, constitute a good cause of action.

The order appealed from should be reversed, and judgment rendered for the plaintiff, with liberty to the defendant on paying the costs at special term, to put in answer in twenty days.

Monell, J.

I concur in the opinion that there is but one cause of action set out in the complaint. The plaintiffs claim to recover on the “ promise ” of the defendant to pay the balance of the purchase money, and the referee’s fee, in case the referee should decide that the title to the lots was good and valid. All that part of the complaint numbered “First,” and which may be denominated the “inducement” or conveyance to the action, was necessary to render the statement of the plaintiffs’ right to recover upon the promise clear and intelligible. Under the forms of pleading before the Code, it was usual, in a variety of actions, to state the inducement or the matter from which the cause of action originated. Thus in assumpsit for a wager, it was usual to state the matter from which the wager originated, before setting forth the wager and non-payment of it. In debt on a bail bond, it was necessary to state the delivery of the writ to the sheriff and the arrest, before stating the bond and breach. So in an action upon an award, the declaration usually stated the differences between the parties, before stating the submission. In the case before us, the statement of the sale of the. lots, the purchase by the defendant, the tender of the deed, and the refusal of the defendants to accept it, were necessary to make the promise clear and to furnish it with a sufficient consideration to support it. Upon all these facts taken together, there is enough, in my opinion, to constitute a cause of action to recover upon the defendant’s express promise to pay.

Ho subsequent tender of a deed was necessary. The refusal of the defendant to pay after the decision of the referee that the' title was good, made the action complete on the promise, and as there is nothing, in the agreement of submission to the referee, that a deed should be delivered on payment of the purchase money, nor any such condition annexed to the promise, the plaintiffs are not obliged to allege any tender, in their complaint, The defendant must be left, therefore, to claim, by way of defense, that upon payment of the balance of the purchase money, the plaintiff's shall execute and deliver to him a deed of the lots, or to set up by answer any other defense he may have.

I concur in reversing the order at special term, upon the terms mentioned in my brother Robertson’s opinion.

Moncrief, J.

"Viewing the complaint as an entirety, and void as containing two separate and distinct causes of action, it seems to me there can be no question that the demurrer should have been overruled.

The demurrer alleges that the complaint does not state facts sufficient to constitute a cause of action, and thus concedes that it is to be considered as the statement of a single cause of action. (Gode, § 145.)

This view, however, does not accord with the points of the counsel for either of the parties, and may probably be said to have first occurred to the chief justice, presiding upon the argument of the appeal, On behalf of the defendant it was insisted that the action was for relief and not as the summons and the prayer of the complaint would indicate, an action upon a contract; and the counsel for the plaintiffs argued, assuming that the complaint contained two distinct causes of " action, and that the “part marked ‘second’ states a complete cause of action on contract.”

The statement may be considered as a narrative of the transactions connected with the subject of action, (Gode, § 167,) and the complaint therefore good, upon demurrer.  