
    (99 App. Div. 545)
    FRIEZE v. ALABAMA GREAT SOUTHERN R. CO.
    (Supreme Court, Appellate Division, Second Department
    December 15, 1904.)
    1. Pleading—Inconsistent Counts—Election. .
    A statute of Alabama makes a common carrier liable where it issues a bill of lading for goods which it has not received for carriage, or issues, a bill of lading and makes but partial delivery thereunder. A complaint contained two counts; one charging the carrier with not having delivered • all that it received, as indicated by the bills, and the other with having issued bills tor more than it received. Reid, that plaintiff should not .be compelled to elect before trial on which count of the complaint he would rely. ■. . • -
    2. Appeal—Obdebs Appealable—Refusal to Compel Election.
    Where a motion to compel an election between counts of the complaint is made at the trial, its denial is discretionary; but, when the inconsistency appears on the face of the complaint, defendant, before answering, may move that plaintiff elect, and in that case an order denying the motion is appealable.
    Appeal from Special Term.
    Action by Lyman B. Frieze, Jr., against the Alabama Great Southern Railroad Company. From an order denying a motion ■that plaintiff elect between causes of. action, defendant appeals.
    Affirmed.
    Argued before HIRSCHBERG, P. J., and BARTLETT, WOODWARD, JENKS, and HOOKER, JJ.
    Charles MacVeagh (Vivian Spencer, on the brief), for appellani.
    Leavitt J. Hunt, for respondent.
   JENKS, J.

The plaintiff is' the assignee of the holder of two bills of lading, and the defendant is a common carrier. The litigation arises over the contention that the defendant did not deliver in full two certain shipments of cotton received by it in the state of Alabama, and upon which it issued the bills of lading. There are four causes of action pleaded. The first and third causes are similar, and relate to the first shipment, and the second and fourth causes are similar, and relate to the second shipment. The plaintiff pleads a statute of Alabama which casts liability upon a common carrier who either, not having received things for carriage, shall issue a bill of lading therefor, or who shall issue a bill of lading, and shall make but partial delivery thereunder. The situation is plain enough. The holder of the bills complains because he did not receive all the property covered by them. And his proposition is that either the carrier did not deliver all that it received as indicated by the bills, or, if it delivered all that it received, it issued the bills for more than it received. He contends that the common carrier is liable in either event, and this is the sum and substance of his pleading.

I think that the motion made at Special Term before answering to compel the plaintiff to elect was properly denied. Presumably, ■all that the plaintiff knows is that there were not the deliveries ■called for by the bills. If there were not, then the reason therefor is presumably known to the defendant. In advance of the trial the plaintiff should not be put to the peril of an election, when his action is merely based upon deliveries not in compliance with the defendant’s bills. The learned counsel for the defendant says that he cannot answer without jeopardy of a motion for judgment. But there is nothing inconsistent if the defendant is asked to answer whether it did receive all of the cotton, and did not deliver it, "or, did not receive all of the cotton, but delivered all cotton which was received. If' the defendant must answer one way or the other specifically,-yet there may be other facts which avoid its liability in either case. If not, and the facts warrant judgment, why should the court delay it? It may well be that when the cause comes to trial the evidence presented may justify the court, upon request, to require an election. Mayo v. Knowlton, 134 N. Y. 250, 31 N. E. 985.

The point is made that the order is not appealable. It is settled, where the motion is made at the trial, that the denial is discretionary. Tuthill v. Skidmore, 124 N. Y. 148, 26 N. E. 348, and authorities cited. But in the same case it is said that, when the inconsistency plainly appears on the face of the complaint, the defendant, before answering, should move that the plaintiff elect; citing Cassidy v. Daly, 11 Wkly. Dig. 222, on opinion at the former General Term of this department, per Gilbert, J.

The order should be affirmed, with $10 costs and disbursements. All concur.  