
    Redmond et al., Plaintiffs and Respondents, v. Dana and Chapman, Defendants and Appellants.
    1. When a judgment and éxecution creditor (whose execution has been returned unsatisfied) brings a suit against his debtor to set aside, as fraudulent, an assignment made by the latter of his property, and includes the assignee as a defendant, and prays in his complaint for such relief, and that a receiver of the assigned property may be appointed, and that the plaintiffs’ debt and costs may be paid out of the same; that the defendants make discovery of the entire assets whether the assignment be adjudged void or not; and that the assignee account for such property as a trustee in behalf of the plaintiffs and other creditors of the said assignor; the Court will not, upon motion, compel the plaintiffs to elect, either to proceed to set aside the assignment as fraudulent, or to proceed under it as a valid assignment for an account of the assets assigned; and if he elect the latter course, strike out all allegations of fraud and the prayer that the assignment be adjudged fraudulent; and if he elect the former, strike out the prayer for a discovery, and an account of the assets assigned, by the assignee as a trustee on behalf of the plaintiff and other creditors of the assignor.
    2. Such a motion could not be granted, in any aspect, except upon the assumption, that it is well settled law; that if the plaintiff fail to establish the fraud, he can have no relief in the present action. Such a question can only be settled, according to the orderly course of practice, at the trial.
    3. Where, as in the present case, it is not asked that any allegations of fact should be stricken out of the complaint, as being irrelevant to the proper statement of a case to set aside an assignment as fraudulent, the plaintiffs should be permitted to prove them all if they can, and should have granted to them such relief as the facts they may prove may entitle them to demand; and what that relief should be, should be left to be determined at the trial.
    4. In such a case, the prayer for relief, when concisely and clearly stated should not, on motion, be incautiously interfered with by the Court; inasmuch as it is the duty of the Court, upon the trial, (whatever the relief prayed), to grant any relief consistent with the case made by the complaint and embraced within the issue; and inasmuch also, as upon a failure to answer, no relief can be granted exceeding that demanded by the complaint.
    5. In so far as such a motion is made on the idea, that such a complaint contains two several causes of action which cannot be properly united, it is a sufficient answer to it; that the appropriate mode to test that question is by a demurrer; and a party should be restricted to that remedy.
    6. Motions, made before a cause is at issue, the decision of which cannot effect any practical result beyond the determination, prior to the trial, of the extent of the relief which the Court would deem it proper to grant, as one state of facts, or another, should be established at the trial; should not be entertained.
    (Before Bosworth, Oh. J., and Hoffman, Slosson, Woodruff and PlERREPONT, J. J.)
    Heard, October 23;
    decided, November 27, 1858.
    This is an appeal by the defendants Dana and Chapman,, from an order made on the 4th of September, 1858, by Mr. Justice Slosson, denying a motion made by them, that the plaintiffs should elect whether they will proceed to set aside the assignment mentioned in the complaint, as being fraudulent as against the creditors of the assignors; or whether they will proceed for an accounting under it as a legal and valid assignment; and to strike out specified parts of the complaint.
    William Redmond, John Nicholson and John J. Clapp, are the plaintiffs, and Frederick E. Radcliff, Norman Cutter, Alexander H. Dana and George M. Chapman, are the defendants.
    The suit is brought by the plaintiffs as judgment creditors of Radcliff and Cutter; having, severally, a judgment against them, on which an execution has been issued and returned unsatisfied.
    The complaint alleges, the recovery of each judgment; the issuing of execution thereon; its return wholly unsatisfied; that it was recovered against Radcliff and Cutter as partners; doing business under the firm of Frederick E. Radcliff, an alleged limited partnership, said Cutter being the special partner; and also alleges that in law they are liable as general partners, by reason of their not having complied with the provisions of the law relating to limited partnerships.
    It then alleges, that Radcliff and Cutter on the 28th of October, 1854, with intent to defraud, &c., executed an assignment of all their partnership and individual property to the defendant Chapman. Certain facts, are specified,, as evidence of the alleged intent to defraud.
    It charges, that the execution of this assignment was kept a secret,, with the like fraudulent intent, and that afterwards, in; November, 1854, Radcliff and Cutter, with the- like fraudulent intent, executed a second assignment, (in terms, like the- prior one,) to the defendants Dana and Chapman.
    It also alleges that the assignors were permitted-, to use- and apply, at their discretion, various and large portions of the assigned property.
    It also charges- that the assignees have realized and received large sums of money from the assigned property, which they have failed to apply as the assignment directs, and generally, that they have mismanaged, and disregarded their duties, as trustees.
    It prays “that said assignments and each of them may be adjudged to be null and void, and of no effect as against the plaintiffs; for an injunction and receiver, and that said property, assets and effects may be forthwith duly assigned and transferred to such receiver; that the plaintiffs’ several judgments and costs may, by said receiver be paid out of the same,” and “whether said assignment shall be adjudged void or not, that said defendants may be adjudged to make discovery of the entire assets,” &c., “and that said Dana and Chapman may account for such property, as trustees on behalf of the complainants and other creditors of the defendants Frederick E. Radcliff and Norman Cutter.”
    On an affidavit that Cutter had not been served with the summons, nor had appeared in the action; and that the time for Dana and Chapman to answer had not expired; and on the said complaint, an order was made requiring the plaintiffs to show cause on the 2d September, 1854, why they “should not be required to elect whether to proceed in this action for the avoidance of the assignment or assignments in said complaint referred to; or to proceed under the assignment without disaffirming the same, for an account of assets assigned;” and in case of electing the former, then, that the last two paragraphs of the complaint (above quoted) be stricken out; and “also all other parts of the complaint whereby plaintiffs seek to represent other creditors of said Radcliff & Cutter” be stricken out; or if said plaintiffs shall elect to proceed for an account under the assignment to defendants, Dana & Chapman, then, that so much of the prayer for relief as is contained in these words: “that said assignments and each of them may be adjudged to be null and void, and of no effect as against the plaintiffs,” and “that the plaintiffs’ debt and costs may, by said receiver, be paid out of the same;” and also all other allegations in the complaint averring the said assignment to Dana & Chapman to be fraudulent, or seeking to have the same set aside, be stricken out; and that such further or other order for the amendment of the complaint be made as the Court shall deem proper; and that the time for Dana & Chapman to answer the said complaint be extended till ten days after the decision of this motion, and that plaintiffs pay the costs of this motion.”
    Upon the motion being heard, an order was made granting an extension of time to answer, and denying the residue of the motion, with ten dollars costs. From all of the order, except the part extending the time to answer, the defendants, Dana & Chapman, appealed to the General Term.
    
      A. H. Dana, for the appellants.
    
      O. F. Sanford, for the respondents.
   By the Court.

Bosworth, Ch. J.

—The order to show cause intimates no desire that any allegations of fact contained in the complaint should be stricken out, if the plaintiffs should elect to proceed for the avoidance of the assignments. In the event of such an election, it asks that portions of the prayer for relief be stricken out. This is a virtual concession that all the allegations of matters of fact contained in the complaint, are proper in a complaint in an action, to set aside the assignments, as fraudulent.

If all of them are proper allegations to be inserted in a complaint in an action instituted for such a purpose, then it must be for the reason that they, together, constitute but a single cause of action, or if they constitute several, that such several causes of action arise out of transactions connected with the same subject of action; or may be properly united.

I think the object of the action is single, namely, to reach all the debtors’ property, and have it applied to pay the plaintiffs’ judgments. It does not cease to be single, merely because separate parcels may have been transferred by different instruments to different persons, nor because some of it may be held by one person under one claim of right, and other portions by another, under a different claim of right. (Boyd v. Hoyt, 5 Paige, 65; Cahoon et al. v. The Bank of Utica, 3 Seld., 486.)

But if the complaint contain more than one cause of action, and it is thought that the several causes of action cannot be properly united, and if the defendants seek to test that question, they should demur. (Code, § 144, subd. 5.) Section 148, by declaring that, if a defendant omits to demur on that ground, when the defect appears upon the face of the complaint, he shall be deemed to have waived that objection, by implication denies to him the right to test the question in any other manner.

It is possible, in the nature of things, that every allegation of fact, contained in the complaint, is true.

And it is sought to subject the plaintiffs, to an election to forego all claim to any relief in this action, if they should fail to prove that the assignment was made with an intent to. defraud, even though they might be entitled to relief upon proof of the allegations as to other matters; or to proceed for such relief, only as proof of the latter allegations would entitle them to demand..

If the defendants have any just grounds to support the opinion that no relief can be had in this action if the plaintiffs fail to prove the assignment fraudulent, I think the proper place and time to raise and decide that question is at the trial, when the Court shall have reached the conclusion that the assignments are valid.

I think the Court should be very cautious in striking out any portion of a prayer for relief. Irrelevant matter may be stricken out. But irrelevant matter embraces allegations of matters of fact, and they are irrelevant because they furnish no ground for relief in the action, in which they are found as part of the complaint, even if proved. If they would constitute a cause of action they are not irrelevant, although they may constitute one that cannot, properly, be united with another which is contained in the same complaint. A demand of the relief to which the plaintiff supposes himself entitled,” it is his right and duty to insert in his complaint. When that is clearly and briefly stated, it should not be incautiously stricken out, even in part; as upon a failure to answer no relief can be granted exceeding that demanded by the complaint. (Code, § 141, sub. 3, and § 275.)

If the plaintiffs would be entitled to relief, in this action, on failing to show the assignment fraudulent, upon making proof of all or some of the allegations in respect to other matters, I do not think the Court has any right to compel them to elect to go for a part, only, of such relief as the law gives them a right to demand, on proof of all the allegations contained in their complaint.

The truth of such allegations is stated in proper form, and is not denied by the papers on which the order appealed from was made.

This complaint is not like one which states the same transactions in two or more separate and different forms, and therefore states, in form, two or more several causes of action, when, confessedly, a party has but one. The Code requires a party to state the actual facts of his case. A repetition of them, or of any of them, in the form of separate causes of action is not irrelevant, but is redundant, and all but one may be stricken out, leaving him to elect by which of them he will present his cause of action.

Inasmuch, therefore, as there is no motion to strike out any allegations of' the complaint as irrelevant or redundant, if the plaintiffs elect to treat the action as brought to set aside the assignment, and as that is evidently the object of this action, I think the plaintiffs have a right to prove their case, if the material allegations of the complaint shall be controverted, and to have such relief as the facts proved may entitle them to demand, and what that relief shall be should be left to be determined at .the trial. If it would then be beyond the power of the Court to dismiss the complaint, if the plaintiffs failed to prove the assignment fraudulent, I think it has no power now, in default of the plaintiffs electing as it sought to require them to do, to dismiss it, in part, by electing for them, as the Court must do, if it compels an amendment which will preclude them from obtain-mg all the relief they would obtain, as a matter of right, on proof of all the allegations of the complaint, when left to stand in its present form.

If it be true, that on a complaint which is, clearly, framed with a view to assail the assignments as fraudulent, and to obtain a judgment to that effect, the plaintiffs cannot, on failing to establish the fraud, compel the defendants, to account in this action, under the assignments as valid assignments; then the motion to compel the election which it is sought to require the plaintiffs to make is an idle motion, and whether granted or denied, cannot affect the relief which should be granted in the present action, on the trial thereof.

If, with the prayer left in the complaint as it now reads, the material allegations of the complaint should be put at issue, and on the trial there should be a total failure to establish the fraud, and if notwithstanding that, the defendants could be compelled, in this action, to account; then they could be so compelled, even if the complaint should be amended by striking from its prayer the allegations, which it is asked should be stricken out, in the event of the plaintiffs’ electing to proceed in this action “ for the avoidance of the assignment.”

Whatever relief be prayed, if any be prayed, (and, possibly, if none be prayed,) it is the duty of the Court, if an answer be put in, to grant to the plaintiffs, “any relief consistent with the case made by the complaint, and embraced within the issue.” (Code, § 275.)

Hence, if an accounting under the assignments, as instruments which were made in good faith and are valid, would be relief consistent with the case made by the complaint, when that case is, that the assignments were made with intent to hinder, delay and defraud the plaintiffs, as judgment and execution creditors of the assignors, it would be the duty of the Court to grant it, whatever the form of the prayer for relief, and whether that relief was specially prayed or not.

H such relief would be inconsistent with such a case, then it could not be granted, though specially prayed for.

Therefore; whether the prayer for relief shall be left to stand, as it now reads, or shall be reconstructed, is a matter wholly unimportant, to either party, so far as the remedies of the one, or the liabilities of the other, can be affected by a proper determination of this action.

Granting the motion, on which the order appealed from was made, would be, in effect, a declaration of the opinion of the Court, prior to the trial of the action, as to the extent of the relief which the Court would deem it proper to grant, as one state of facts, or another should be established at the trial.

Motions, made before the cause is at issue, the decision of which cannot effect any practical result beyond that, should not be entertained.

For the reasons stated, I think the order appealed from should be affirmed.

The order was affirmed, and the costs of the appeal declared to be costs in the cause and to abide the event.  