
    John Zeiser, Appellant, v. Mark Cohn, Individualy and as Executor, etc., of Theresa Cohn, Deceased, Respondent.
    Third Department,
    May 2, 1906.
    New trial-granted when, plaintiff, compelled to-elect between two causes • of action and nonsuited after a verdict on cause elected—when complaint alleging conveyance to be fraudulent and also collateral agreement of grantee to pay plaintiff’s claim states one cause of action-.
    When a cbmplaint-.is claimed by plaintiff to set out two causes of action,, one to set aside conveyances as in fraud of creditors, an.d the other to recover on an agreement by the grantee to pay certain creditors-of the grantor, and'the court
    
      compels the plaintiff to elect on which cause he will proceed, and after such election and after a verdict for the plaintiff grants a-nonsuit as to such cause on a motion reserved under section 1187 of the Code of Civil Procedure, because the complaint contains but one cause of action which the plaintiff did'not elect to-proceed lipón, a hew trial will be granted to enable the plaintiff -to try the " cause of action which the court held tó'be stated in the complaint on granting ; ' the nonsuit as to the cause actually tried.' ■ V,
    The complaint alleged that conveyances were in fraud of creditors and that by a collateral agreement the grantee agreed to pay .the plaintiff’s claim against the grantor.
    
      'Held, bn the opinion below; to state but a single cause of action to-set aside the ■ conveyances' as fraudulent.
    Appeal by the plaintiff, John Zeiser, from a judgment of the Supreme. Court in favor of the defendant, entered in the office of ' the clerk of the county, of i Albany on' the'29th day of November, - 1904, upon the dismissal of the complaint as' to the 'respondent by direction, of the' court after a trial - at the Albany Trial Term, the complaint having theretofore been _dismissed by an order, of the .court as to Jacob Cohn, one of the original defendants. ■ ■
    
      J. Newton Fiero and Fletcher W. Battershall, for the appellant.
    
      James J. Farren and Mark Cohn, for the respondent.
   Cochrane, J.:

On the trial it was claimed by plaintiff that he had alleged in his complaint two causes of.action, viz., a cause of action to set aside a deed and bill of sale executed by Jacob .Colin to Theresa Cohn as fraudulent and void as" to the creditors of Jacob Cohn, including the plaintiff,, and also, a cause-of action to recover on. a collateral or accompanying contract alleged to have been executed by Theresa Cohn as a part of the consideration of the said deed and bill of sale, by whicli contract she agreed to pay certain creditors ;of Jacob Cohn, including the plaintiff. The court ruled that if the 'complaint contained those two causes of action the plaintiff must ■ elect .oil which he would proceed. Thereupon the plaintiff Under - protest elected to proceed-on the collateral contract, whereby it was claimed that Theresa Cohn had promised to pay his claim against Jacob Cohn.

At the close of the evidence defendant moved for a dismissal of the complaint on the ground among others that the .only cause of action alleged in the complaint was to set aside the deed and bill of sale as fraudulent, and that the evidence was insufficient to sustain such cause of action. Decision on this motion was reserved under section 1187 of the Code of Civil Procedure until after the verdict of the jury. This verdict was favorable to the plaintiff. Thereafter the court dismissed the complaint, holding that aii error had been committed in permitting the plaintiff to prosecute the action as one upon contract instead of an action in the nature of a creditor’s bill to set aside conveyances alleged to have been executed to defraud creditors, and that thé evidence was insufficient to sustain the latter cause of action.

The trial justice properly reached the conclusion that the complaint contained but one cause of action, and that such cause of action was to set aside the transfers of Jacob Cohn to Theresa Oohn oh the ground that they were fraudulent as to the creditors, of Jacob Cohn, and with his reasons for reaching such conclusion we are in accord. (See 44 Misc. Pep. 462 for the opinion of the trial justice, which also contains a full analysis of the complaint.) .

We think, however, that after a definite decision had been reached as to the correct theory of the complaint, the plaintiff should then have had an opportunity to try his case on such theory. It is true that the court did'not at any time decide that the complaint contained two causes of action. The ruling ■ that plaintiff must elect on which cause of action he would proceed was made with reference to the attitude of the plaintiff that-his complaint was twofold, and' this attitude of the plaintiff may be said to be responsible for the fact that his case has not been tried on the proper theory. But at the same time the question as to the character of the complaint was under consideration quite early in the trial, and if the decision as to this question' had then been made plaintiff would have been at liberty to prove the cause of action which the "court finally determined was the only one that he had alleged; and it is only fair to the plaintiff that, he should not be precluded from this opportunity by reason of the fact that a decision of this question was deferred until after the verdict of the jury. The cause of action alleged in the complaint has not been tried, and in order that the plaintiff may have arc opportunity to establish the same the judgment should' be reversed and' a new trial granted, with costs to abide the event.

All concurred, except Parker, P. J., not voting; Smith, J., concurred in result.

Judgment reversed and new trial granted, with costs to abide event.  