
    Acksuh Gunn, Resp’t, v. Adelbert Fellows et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1886.)
    
    1. Pleadings—Separation and numbering op causes op action required —Code Civil Pro., § 483—Remedy by motion.
    The plaintiff by her complaint alleged as follows, viz.: That the defendant and divers other persons, at the town of T., said county, on or about the 30th day of September, 1885, in the night time, and after the said plaintiff had retired, and while she was in bed, did wrongfully, wilfully, maliciously, feloniously, burglariously, riotously and notoriously break and enter the dwelling-house and premises, then occupied by the said plaintiff as a dwelling, in said town of T., and did then and there injure, break and destroy the said building and property, and furniture in and about said dwelling, and did make loud and boisterous noises, and did then and there threaten, insult, assault, beat, wound, terrify, frighten and injure this plaintiff in mind, person and health, so that she became frightened feeble and sore, and so remained for a long paces of time. * * * On a motion that the plaintiff be required to serve an amended complaint, wherein she should separately state and number the statement of facts constituting the cause of action against the defendant for trespass to the real and personal property of the plaintiff, and the facts constituting her cause of action for assault and battery * * * Held, that Code Civil Procedure, § 483, requires the statement of facts constituting each cause of action to be separate and numbered when the complaint sets forth two or more causes of action. That the remedy for an omission to comply with the requirement of that section is by motion and not by demurrer.
    3. Same—Causes of action—Trespass and assault—Must be separated AND NUMBERED.
    
      Held, that this requirement of Code Civil Pro., § 483, was not complied with in this complaint. That the first part of the complaint made out a distinct cause of action for trespass and the statement thereof should have been separated and numbered, and that the latter part of the complaint contained a statement of facts constituting another cause of action for assault and battery, and such statement should have been numbered and separated from the first cause of action.
    Appeal from an order of the special term of Onondaga county denying defendant’s motion that the plaintiff be required to serve an amended complaint, setting forth separately and numbering the statement of facts constituting the cause of action for trespass to the real and personal property of plaintiff, and the statement of facts constituting her cause of action for assault and battery against the plaintiff. The complaint alleged as follows: “That the defendant and divers other persons, at the town of Tully, said county, on or about the 30th day of September, 1885, in the night time and after the said plaintiff had retired, and while she was in bed, did wrongfully, wilfully, maliciously, feloniously, burglariously, riotously and notoriously break and entre the dwelling-house and premises, then occupied by the said plaintiff as a dwelling, in said town of Tully, and did then and there injure, break and destroy the said building and property and furniture in and about said dwelling, and did make loud and boisterous noises, and did then and there threaten, insult, assault, beat, wound, terrify, frighten and injure this plaintiff in mind, person and health, so that she became frightened, sick, feeble and sore, and so remained for a long space of time,” etc.
    The motion was denied on the ground that one cause of action was alleged in the complaint.
    
      Pierce & Stone, for app’lts; E. P. Moore & M. M. Waters, for resp’t.
   Hardíi-t, P. J.

Section 483 of the Code of Civil Procedure requires “the statement of the facts constituting each cause of action” to be “separate and numbered,” when “the complaint sets forth two or more causes of action.” The remedy for an omission to comply with the requirement of that section is by motion and not by demurrer. Bass v. Comstock, 38 N. Y., 21; S. C., 36 How., 382; Freer v. Denton, 61 N. Y., 496. If causes of action are improperly united, the remedy is by demurrer, whether properly separated and numbered or not. Goldberg v. Utley, 60 N. Y., 427. The facts stated in the first branch of the complaint, under the former system of pleading, would have justified a classification of the action as one for trespass. That term, “in its most extensive signification, includes every description of wrong.” ' 1 Chitty’s Pleading, 166. It was an action “for injuries committed with force.”

The same author says: “And the plaintiff may, in a declaration in trespass, unite a count for the battery or seduction of his servant, per quad servitium amisit, with a count for battery of the plaintiff himself. * * * PIowever, if these injuries be joined with a count in trespass then each should be stated to have been committed vi ei armis. ” 1 Ohitty’s Pleadings, 200.

The same learned author, at page 398, volume 1, says “ Thus, iu trespass for breaking and entering a house, the plaintiff may, in aggravation of damages, give in evidence the debauching of his daughter, or the battery of his servants under the general allegation alla enormia, etc., and yet the matter may be stated specially; but he cannot under the alla enormia give in evidence the loss of service, or any other matter which would of itself bear an action, for if it would, it should be stated specially.” Chitty’s Pleadings, 397; Handy v. Chatfield, 23 Wend., 35.

In Richardson v. Northrup (66 Barb., 87) Mullin, J., says: The rules of pleading at common law required distinct causes of action of the same nature to be stated in separate counts. And the joinder in the same count of several distinct causes of action, was consequently fatal on demurrer.”

We think the requirement of section 483 of the Code of Civil Procedure that “the statement of the facts constituting each cause of action must be separate and numbered ” was violated by the pleader who drew the complaint now before us. The first part of the complaint states a cause of action for breaking and entering the plaintiff’s dwelling house and injuring the building and property and furniture, which allegations make out a distinct and separate cause of action, and the statement in that regard should have been separated and numbered; and the other portion of the complaint contains a “statement of the facts constituting” another cause of action for assault and battery to and upon the person of the plaintiff, and such “statement of facts” should have been numbered and separated from the first cause of action.

We, therefore, differ from the special term and its order which denied the defendant’s motion “on the ground that but one cause of action, namely, trespass, is alleged in the complaint. Code of Civil Procedure, sections 481-483; Case v. Shepard, 2 Johns. Cases, 27; Benedict v. Seymour, 6 How., 298; Wiles v. Suydam, 64 N. Y., 175; Pomeroy’s Remedies and Rights, sections 452-462; Anderson v. Hill, 53 Barb., 238; Langdon v. Guy, 91 N. Y., 660; Fisher v. Conway, 21 Kan., 18; Durkee v. S. and W. and W. R. R. Co., 4 How. Pr., 226; Gooding v. McAlister, 9 How., 123; Zimmerman v. Shreever, 27 Albany Law Journal, 499.

Our attention is called to Van Leuven y. Lyke (1 Comst., 517), which was an action for trespass for injury to plaintiff’s animal’s by defendant’s animals, and the damages were described in the complaint, and it was not alleged or proven that _ defendant had knowledge of the vicious propensities of his animals. It was held damages could not be recovered. It does not aid the respondent here.

We have looked into the other cases cited by the respondent and do not find anything in conflict with the-views already expressed. In case the plaintiff recovers less than fifty dollars for trespass, a different rule as to costs would be applicable than would prevail in an action where the recovery was for an assault and battery for less than fifty dollars. In case the causes of action are separately stated and numbered, confusion and difficulties in regard to the rule respecting costs may be avoided. Code, sections 3228-3234.

We think the order appealed from in this ana the other eight cases should be reversed, with ten dollars costs and disbursements in one case, and the motion granted in all the cases, with ten dollars costs of motion in one case,, plaintiff to serve amended complaints within ten days from the service of a copy of this order.

Boardman and Follett, JJ., concur.  