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plaintiff's attorney contended was the cause of action he had intended to allege, or after verdict and judgment.

[4-6] It seems to me the learned justice has failed to appreciate that the office of a complaint is to inform the defendant with reasonable certainty of the cause of action that the plaintiff claims he has against him, that the defendant may be able to plead. If the statement of the facts is such that there might be two distinct causes of action stated, and such was the purpose of the complaint, then the defendant is entitled to have each cause of action separately stated and numbered. He may demur to one and answer the others. He may have a defense to one which he would not have to the others. It is his right to be afforded an opportunity to intelligently meet the issue tendered, and not be compelled to imitate the plaintiff and draw a rambling inconsequential answer, that he may be in position to meet at the trial any possible issue the ingenuity of counsel may be able to spell out from a confused mass of statements of fact.

[7] The plaintiff's attorney does not inform us what he claims to have stated as a cause of action, but throws around his complaint as a shield section 519 of the Code of Civil Procedure, which he states is a conclusive answer against the motion and this appeal. That section, however, was not intended to abrogate all the rules and requirements of pleading. "The allegations of a pleading must be liberally construed, with a view to substantial justice between the parties." That substantial justice may be done, a defendant has the right to be informed with reasonable exactitude of the cause of action alleged against him. As Chief Justice Ruger said:

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"It was formerly the settled rule to construe doubtful pleadings most strongly against the pleader; but this rule has been so far modified by the Code as now to require them to be liberally construed, with a view to substantial justice between the parties. This modification has, however, been held to extend only to matters of form, and not to the fundamental requisites of a cause of action. A construction of doubtful or uncertain allegations in a pleading, which enables a party by thus pleading to throw upon his adversary the hazard of correctly interpreting their meaning, is no more allowable now than formerly. It is in the nature of things that a party, who is required to frame his issues for the information of his adversary, and the court, must be responsible for any failure to express his meaning clearly and unmistakably." Clark v. Dillon, 97 N. Y. 370, 373.

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The rule of liberality in the construction of pleadings was not intended to change the fundamental requirement that the complaint must contain a plain and concise statement of the facts constituting each cause of action, without unnecessary repetition, and where the complaint sets forth two or more causes of action the statement of facts constituting each cause of action must be separate and numbered. Code Civ. Proc. § 481, subd. 2, and section 483. We cannot determine whether the pleader intended to set up one cause of action or three. If he intends to state but one cause of action in each separately stated and numbered cause of action, then he should plainly and concisely state the facts constituting that cause of action, and leave out allegations that have no relevancy or materiality thereto. If he intended to state two or more causes of action, then the allegations which would present each cause

(178 Ν.Υ.S.)

of action must be separately stated and numbered. We have not passed upon the specific objections that there are redundant allegations, evidentiary statements of fact, and conclusions of law contained in the complaint. All of these objections are well founded; but, as there will be an opportunity to serve an amended complaint, we shall expect the pleader to observe the few simple rules of code pleading, and present a plain and concise statement of the facts constituting each cause of action without unnecessary repetition, and in which each cause of action that he desires to present will be separately stated and numbered; that he will allege the ultimate facts which he must prove to sustain each cause of action, and not the evidence tending to establish those facts, and will bear in mind that continued repetition of a fact, once well pleaded, adds nothing to its force or value, and is expressly condemned. His own intelligence should be a sufficient guide, without its being necessary for the court to further indicate wherein these requirements have been violated in the complaint under consideration.

The order will therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to serve an amended complaint upon payment of the costs within 10 days after the service of a copy of the order to be entered herein, with notice of the entry thereof. Order filed. All concur.

(189 App. Div. 179)

CALAME et al. v. JOSEPH.

(Supreme Court, Appellate Division, First Department. October 24, 1919.) PLEADING 64(2) -SEPARATE CAUSES OF ACTION IN ONE COUNT.

In an action on a contract under which plaintiffs were to get commissions for selling iron and steel materials, allegations that defendant was indebted to the plaintiff for money laid out and expended and for charges and commissions in the purchase and sale of goods, rendered a count bad as stating two causes of action, where the contract did not provide for the purchase of merchandise nor expenditure of money in behalf of the defendant.

Appeal from Special Term, New York County.

Action by Henry A. Calame and others against Leonard Joseph. From an order denying a motion for an order directing the plaintiff to make the allegations of the complaint definite and certain, to strike therefrom allegations which are immaterial and redundant, to strike out therefrom allegations which are evidentiary, and to separately state and number the various causes of action which are set forth in the complaint, the defendant appeals. Reversed, with leave to amend. Argued before CLARKE, P. J., and DOWLING, PAGE, MERRELL, and PHILBIN, JJ.

Sporborg & Connolly, of Port Chester (William D. Sporborg, of New York City, of counsel), for appellant. Hunt, Hill & Betts, of New York City (William M. Aydelotte, of New York City, of counsel), for respondents.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

PAGE, J. There is present in the complaint in this case all of the vices of the complaint considered in Stabilimento Metallurgico Ligure v. Joseph, 189 App. Div. 173, 178 N. Y. Supp. 241, decided herewith, and some besides. The plaintiffs allege that they were appointed general agents of the Alabama corporation for the sale of iron and steel materials and metals in Italy upon a commission basis. The various allegations in the complaint in that case as to the incorporation of the Texas company and the filing of the certificate to do business under the trade-name, the assumption of the contract obligations of each successor, and the control and ownership of the stock of the corporations by the defendant are repeated, except in this case the plaintiff attaches an exemplified copy of the certificate of dissolution of the Texas corporation and in the body of the complaint copies the certificate for use of the trade-name filed with the county clerk, while in the other the fact of such dissolution and of the filing of the certificate was alleged. In addition to the different theories of liability that might be spelled out in this complaint from these allegations, there is the further objection that in each of the two causes of action the plaintiffs have alleged that the defendant is indebted to the plaintiff for money laid out and expended and for charges and commissions in the purchase and sale of goods, wares, and merchandise. The contract does not provide for the purchase of merchandise, nor for the expenditure of money in behalf of the corporation. Therefore there is more than one cause of action stated in each of the separately stated and numbered causes of action alleged in the complaint.

The order will therefore be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to serve an amended complaint, upon payment of the costs within 10 days after the service of a copy of the order to be entered herein with notice of the entry thereof. Order filed. All concur.

(178 N.Y.S.)

2. SALES162-ORDERS ON WAREHOUSE NOT "DOCUMENTS OF TITLE."

Orders on a warehouse to deliver cases of milk, where warehouse receipts are retained by seller, are not "documents of title," within Personal Property Law, $ 124, subd. 3, relating to delivery of goods in possession of a third person other than the seller.

3. SALES 164-BUYER NOT OBLIGED TO ACCEPT PARTIAL DELIVERY.

Where a buyer ordered 300 cases of Holly brand evaporated milk, and the seller could not deliver that number of cases of Holly brand, the buyer was not obligated to accept a partial delivery.

Appeal from City Court of New York, Trial Term.

Action by J. A. Kirsch & Co., Incorporated, against Roulston, Beckert & Co., Incorporated. From a judgment on a directed verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1919, before GUY, BIJUR, and DELEHANTY, JJ.

John L. Lyttle, of New York City (Earle W. Webb, of New York City, of counsel), for appellant.

Benjamin I. Shiverts, of New York City, for respondent.

GUY, J. This is an action for goods sold and delivered, and defendant appeals from a judgment entered upon a verdict directed for plaintiff.

Defendant gave a written order, dated February 14, 1919 (erroneously stated in the record as March 14, 1919), for 300 cases of evaporated milk, Holly brand, to be shipped at once "ex warehouse." On February 17 defendant sent its truckman to plaintiff for the merchandise. The truckman testified that plaintiff's representative, Miss Lobel, gave him an order for 124 cases; that he returned the order to Miss Lobel, whereupon she gave him another order on the Beach street warehouse; that upon presentation of the order at the Beach street warehouse the clerk brought down milk which was not the Holly brand, and on the truckman's refusal to take it the clerk gave him back the order; that the truckman then went back to plaintiff's place of business, gave the last order, which was for Artic brand milk, to Miss Lobel, and after waiting some time he finally got two orders on the York Storage & Warehouse Company, one for the delivery to defendant of 150 cases of milk, and the other for 150 cases of Holly milk. The truckman further testified that at about 4 o'clock in the same afternoon he called with his truck at the York warehouse and presented the orders, but was told he was too late; that there were no other trucks at the warehouse then, and men who looked like workmen were "standing around there"; and that on other occasions he received merchandise from the same warehouse as late as 4:30. At no time afterward did defendant send for the merchandise. On February 19 it returned the two orders to the brokers who made the sale, for the reason, as stated in the letter inclosing the orders, that plaintiff was willing to sell the same brand of milk to defendant through a different broker at 70 cents a case less than the contract price. On or about March 21 the brokers returned the orders to the

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

plaintiff, with a copy of the letter received by them from defendant. Upon the trial plaintiff produced a receipt from the York Storage & Warehouse Company, dated February 17, 1919, for the merchandise in question, and showed that the milk had not been taken from the warehouse. The warehouse receipt apparently was never delivered to the defendant. At the close of the case, upon defendant's motion to dismiss and plaintiff's motion for the direction of a verdict, the court directed a verdict for the plaintiff, holding that the delivery to and acceptance by the defendant of plaintiff's written orders on the warehouseman was sufficient to place the merchandise in the power of the defendant, and under the authorities delivery was thus established.

In the cases cited by the trial judge in his memorandum there are statements which justify the conclusion reached. For instance, in Gross v. Ajello, 132 App. Div. 25, at page 27, 116 N. Y. Supp. at page 382, the court says that

"The delivery of the order on the warehouse for the peas would have justified a recovery of the purchase price"-citing Salmon v. Brandmeier, 104 App. Div. 69, 93 N. Y. Supp. 273, and Horst v. Montauk Brewing Co., 118 App. Div. 300, 103 N. Y. Supp. 381.

In the Salmon Case the court said (104 App. Div. 69, 93 N. Y. Supp. 273):

"Where manual delivery of goods is inconvenient on account of their bulk it is unnecessary, placing the goods in the power of the vendee is sufficient. An actual delivery is not required. A symbolic delivery suffices, and delivery of an order on the warehouseman may be enough." Dunham v. Pettee, 8 Ν. Υ. 508.

And the court in the Horst Case restates the rule as laid down in the Salmon Case. In the Horst Case, however, there was the additional fact of the vendor sending to the vendee warehouse receipts for the merchandise claimed to have been delivered to the defendant.

An examination of the authority relied upon by the court in the Salmon Case (Dunham v. Pettee, supra) for the doctrine herein stated does not justify the conclusion that the mere giving of a delivery order upon a warehouseman constitutes a delivery of the goods, so as to warrant a recovery for goods sold and delivered. The Dunham Case was not an action for goods sold and delivered. There plaintiffs sold to defendants a quantity of iron stored in public store, upon which the sum of $750 was paid by the buyers; the balance of the purchase price being payable on delivery within 60 days from the date of the contract. The complaint alleged that the plaintiffs were ready and willing to deliver the iron to the defendants and receive the balance of the price therefor, and in all respects to comply with the terms of the contract on their part, and that they within the 60 days mentioned in the contract offered and tendered to defendants the iron, but that the latter were not ready and willing to receive it and pay the balance of the price, and wholly refused to do so. In their answer defendants denied that plaintiffs were ready and willing to comply with the terms of the contract, or that they offered and tendered the iron to the defendants. It appears from the report of the case that a custom