Mutual Life Insurance v. Gillette , 104 N.Y.S. 683 ( 1907 )

Scott, J.:.

The plaintiff has so framed its complaint as to set out two complete causes of action : One in equity for an accounting concerning the disposition of a fund over which, as it is said, the defendant had custody and control; the other at law for damages claimed to have resulted from the wrongful or negligent acts of defendant, in auditing bills against the plaintiff, payable out of its general funds and not out of the special fund alleged to have been within defendant’s custody. It is true that these two causes of action are not separately stated and numbered as such, but they are as distinct as. if they were so stated and numbered. -It is manifest that these'two causes of action cannot be united in one complaint, and, therefore, the- demurrer was properly, disposed of in the court below. The cases relied upon by plaintiff to sustain its pleading (Bosworth v. Allen, 168 N. Y. 157; Mabon v. Miller, 81 App. Div. 11) are not in point. While it is true that certain expressions used in the opinions in those cases might appear to uphold the plaintiff’s contention, the vital difference between those cases and the present is that here it -is not alleged that defendant liirnself received or profited by any part of the sums said to have been paid out on his improper ■audit. The cause of action for negligent audits is governed by Higgins v. Tefft (4 App. Div. 62) and O'Brien v. Fitzgerald (6 id. 509). Mor- have we presented here merely the case of an action for an accounting which includes matters not properly the subject of an account., In such a case the question of what the accounting should cover would be a matter to be determined upon the settlement of' the interlocutory judgment, and not a question to be raised by demurrer. As the plaintiff lias, however, seen fit to distinctly and completely plead two causes of action, the question of improper joinder is one which can be tested by a demurrer.

The judgment appealed from is, therefore, affirmed, with costs and disbursements, with leave to plaintiff to amend its complaint within twenty days-upon payment of* costs in this court and the court below.

Ingraham, Laughlin, Clarke and Lambert, JJ"., concurred.

"Judgment' affirmed, with "costs and disbursements, with leave to plaintiff to amend complaint on payment of costs in this court and in the court, below.