Nichols v. Drew

The defendant Drew alone demurs. The question is, therefore, whether the complaint is good as against him, in respect to the particulars specified in the demurrer. The grounds of his demurrer are : (1.) That the complaint does not state facts ¿sufficient to constitute a cause of action; (2.) That the second count does not state facts sufficient .to constitute a cause of action; (3.) That several causes of action have been improperly united ; and (4). That tho second cause of action does not affect the defendant Churchill. The only ground which requires comment is the claim that several causes of action have been improperly united. The most favorable view for the plaintiff that can be taken of the first count is, that upon the facts alleged therein the plaintiff is entitled to have the assignment held l>v Churchill set aside for fraud, and to recover of the other defendants tho amount of his claim against them remaining unpaid. And as the count alleges, that the money paid for the assignment, in fact, belonged to Drew, or was paid for his benefit, it may be *493that the plaintiff is entitled to treat it as a part payment of the debt and is not required to restore it as a, condition of setting aside the assignment. There is authority for saying, also, that as against Drew alone, the plaintiff may, in the same count, seek to set aside the fraudulent assignment and recover the balance of the- debt. (Phillips v. Gorham, 17 N. Y., 270 ; The New York Ice Company v. The North Western Insurance Company of Oswego, 23 id., 357.) It may also be assumed that the real cause of action set out in the first count is for the recovery of the amount unpaid upon the contract, and that the remainder of the count is framed with a view of setting aside an impediment in the way of obtaining that relief. If this view of the first count is correct, then as the second count obviously sets out. a cause of action against Drew on contract, the two counts might well stand together in the same complaint, but for the circumstance that Drew is sought to be charged in the first count as a joint contractor with the defendants Young and McLane, and in the second count as a joint contractor with Young alone. The two contracts, not being made by the same parties, cannot be sued on in one action. On this ground the demurrer is well taken.

The judgment and order of the Special Term should be reversed, and judgment ordered for the defendant on the demurrer, with, leave to, the plaintiff to amend in twenty days, on payment of the costs of the appeal and of the demurrer.

Ordered accordingly.