
    Lyman B. Frieze, Jr., Respondent, v. Alabama Great Southern Railroad Company, Appellant.
    
      Action against a common carrier—election between a claim, that the ca/rrier received all and failed to deliver part of the goods mentioned in its bill of lading, or received less goods titan those mentioned therein — when an order denying a motion to compel it is appealable — when discretionary and not appealable.
    
    The assignee of two bills of lading brought an action against the railroad company issuing such bills, claiming that the railroad company did not deliver all the goods which it received and upon which it issued the bills of lading, or, if it did deliver all the goods received by it, that it improperly issued the bills of lading for a greater amount of goods than it received. In either contingency the railroad company was liable under a statute set up in the complaint. Held, that a motion made by the defendant at the Special Term, before interposing its answer, to compel the plaintiff to elect upon which theory he would proceed, was properly denied;
    That the order denying the motion to compel an election was appealable to the Appellate Division.
    
      Semble, that if the motion to compel an election had been made at the trial, the denial thereof would have been discretionary with the trial court, and could not be reviewed by appeal.
    Appeal by the defendant, the Alabama Great Southern Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 28th day of June, 1904, denying the defendant’s motion to compel the plaintiff to elect between certain alleged causes of action.
    
      Charles Mac Veagh [Vivian Spencer with him on the brief], for the appellant.
    
      Leavitt J. Burnt, for the 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. (See Code of Alabama, § 4223.) 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.)

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, 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. Dally (11 Wkly. Dig. 222), on opinion at the former General Term of this department, per Gilbert, J.

The order should be affirmed, with ten dollars costs and disbursements.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  