Statement of case. with interest, less the amount paid by Churchill. The second count alleges that it repeats all the allegations contained in the first count, and further alleges that, before said claim was assigned to Churchill, the defendants, Drew and Young, represented that there was money in the hands of R. & P. D. K. Saunders, a law firm in Buffalo, to the amount of $252, and verbally assigned said money to the plaintiff to apply on his said demand, and directed and requested the plaintiff to sue said firm for the money; that, in pursuance thereof, the plaintiff brought suit, and was defeated and compelled to pay costs in said action to the amount of $150; that he never recovered any part of said money, but whatever moneys were in the hands of said Saunders were paid out by them in pursuance of the directions of Drew, McLane and Young, or one of them, and that the money so represented to be in the hands of said Saunders was not assigned to Churchill, but was reserved to the plaintiff. The relief demanded is that the plaintiff recover from Drew, Young and McLane the sum of $1,218.12, with interest, less the amount paid by Churchill; that he also recover, as damages, the costs and expenses incurred by him in the action against Saunders; that the assignment to Churchill be adjudged fraudulent and void, and that Churchill and Drew, for their fraud and deceit, be adjudged to pay the plaintiff $2,000 damages, and general relief is also prayed for. The demurrer was upon the ground, among others, that two causes of action were improperly joined, one being for tort, and the other on contracts, and both not affecting all the parties. Thomas Corlett for appellant. On demurrer all reasonable intendments will be indulged in in support of the pleading demurred to. (Lorillard v. Clyde, 86 N. Y. 384, 389.) So that as against Drew, who demurs, the first count shows a perfect cause of action against him on contract jointly with Young and McLane, to recover the board bill, and also to remove the obstruction in the way of its recovery, to-wit: the fraudulent assignment. (Litell v. Sayre, 7 Hun, 485.) The right to re Statement of case. move a fraudulent obstruction, and to recover in the same action, is well established. (Phillips v. Gorham, 17 N. Y. 270; Lattin v. McCarty, 41 id. 107; Bracket v. Wilkinson, 13 How. Pr. 102; Smith v. Schulting, 14 Hun, 52; Strasburg v. Mayor, etc., 87 N. Y. 452, 454, 456; N. Y. Ice Co. v. N. W. Ins. Co., 23 id. 357; Sternberger v. McGovern, 56 id. 12; New Code, § 484; Wiles v. Suydam, 64 N. Y. 173.) The fact that the plaintiff, after demanding appropriate relief, makes a further demand against the defendants, Drew and Churchill, for their fraud is not of the slightest consequence, for no demurrer will lie to the prayer for relief. (Kingsland v. Stokes, 25 Hun, 107, 110; Mackey v. Auer, 8 id. 180; Walker v. Spencer, 45 N. Y. Sup. Ct. 71; Pierson v. McCurdy, 61 How. Pr. 134; Neftel v. Lightstone, 77 N. Y. 96; Conaughty v. Nichols, 42 id. 83; Graves v. Wait, 59 id. 156; Ledwich v. McKim, 53 id. 308; Rose v. Terry, 63 id. 613, 614; Sparman v. Keim, 83 id. 245; Olcott v. Carroll, 39 id. 436.) Each count of the complaint states a good cause of action against the defendant Drew. Both counts are upon contract, and each count equally affects the defendants Drew, Young and McLane, and hence the demurrer could not be sustained. (Dempsey v. Willett, 16 Hun, 264, 265; Zabriskie v. Smith, 3 Kern. 322; Olcott v. Carroll, 39 N. Y. 436; Barber v. Morgan, 51 Barb. 116; Code of Civ. Proc., §§ 488, 490, 499, 542; Nellis v. DeForest, 16 Barb. 61, 65; Osgood v. Toole, 60 N. Y. 475; Schwarts v. Oppold, 56 How. Pr. 156; Marston v. Gould, 69 N. Y. 220, 221; Richtmyer v. Richtmyer, 50 Barb. 55; Fish v. Hose, 59 How. Pr. 238.) C. F. Tabor for respondents. The first count in the complaint is a count in fraud. (Barnes v. Quigley, 59 N. Y. 267; McMichael v. Kilmer, 76 id. 40; Whiteside v. Hyman, 10 Hun, 218.) The second count is clearly one in contract. (Keep v. Kaufman, 56 N. Y. 332.) The second count does not allege a cause of action against all of the defendants. This is good cause for demurrer. (Mann v. Marsh, 21 How. 392; Cornell v. Mayor, etc., 3 Weekly Dig. 534.) The second count Opinion of the Court, per FINCH, J. did not affect either of the defendants McLane or Churchill. (Burroughs v. Totstevan, 75 N. Y. 572; Bonnell v. Wheeler, 3 T. & C. 561; Van Liew v. Johnson, 6 id. 537; Schnitzer v. Cohen, 7 Hun, 665; Barton v. Spies, 5 id. 60; Jackson v. Brookins, id. 533; Gardner v. Ogden, 22 N. Y. 340; Bonell v. Griswold, 68 id. 294.) Even though the first cause of action be regarded as one to set aside the assignment to Churchill, and to recover the debt of Drew, McLane & Young, the joinder with the second was improper, and the demurrer was well taken for that reason. (Van Liew v. Johnson, 6 T. & C. 648; Cook v. Horwetz, 10 Hun, 586; Wiles v. Suydam, 64 N. Y. 179.) A complaint demanding a rescission and damages should show an offer to restore upon the part of the plaintiff. (Dubois v. Hermance, 56 N. Y. 673; Cobb v. Hadfield, 46 id. 537; Van Liew v. Johnson, 6 T. & C. 650; Lexan v. Julien, 6 Weekly Dig. 508; Ross v. Titter, 6 Hun, 284; Gould v. Cayuga B'k, 86 N. Y. 75.) Plaintiff, instead of availing himself of the leave granted by the General Term to amend his complaint, having appealed to this court, has risked his case upon a mere question of pleading. (Keep v. Kaufman, 56 N. Y. 333.) Every intendment on a demurrer is against the pleader. (People v. Suprs. of Ulster, 34 N. Y. 269; Cook v. Warren, 88 id. 42.) FINCH, J. The demurrer interposed took the specific objection that the first cause of action pleaded was in tort, while the second was on contract, and so there was a misjoinder of causes of action. The General Term sustained the objection. It is now claimed that both counts were on contract, and the first is construed to allege a debt against Drew, McLane and Young, which is sought to be recovered, while Churchill is introduced as a party, and his and Drew's fraud alleged, solely to set aside the assignment to Churchill, and restore the plaintiff to the position of a creditor of the firm. But the pleading plainly avers a fraud perpetrated by Drew and Churchill, whereby the plaintiff suffered damage to the amount of seventyfive per cent of his debt. The loss of the debt as damages SICKELS VOL. XLIX. 4 Opinion of the Court, per FINCH, J. suffered, and not its recovery upon the contract, is the substance of the pleading. But if this were doubtful, and the first cause of action could be deemed ex contractu, and aimed solely at a recovery of the debt, a difficulty remains. An objection was stated in the demurrer that the second cause of action did not affect the defendant Churchill. Although it repeats the allegations of the first count, it goes on to show, and does clearly show, that Churchill was in no manner affected by it; for it avers that the moneys said to be in the hands of Saunders were not included in the assignment to Churchill, but reserved therefrom, and that the false statement of moneys in the hands of Saunders and their assignment to plaintiff was before the latter's assignment to Churchill. Now the only pretense for making Churchill a party, upon the theory that both causes of action are on contract, is to set aside the assignment to him. But the Saunders money, or so much of the debt of the firm as that represented, is distinctly averred not to have been assigned to him, so that, taking as true, as we are bound to do, the allegations of the complaint, it distinctly appears that to the second cause of action Churchill was an entire stranger, and in no manner affected by it. The Code provides (§ 484), for the joinder of causes of action, naming in nine subdivisions those which may be united, but applying further to those in each class the limitations that they must be consistent with each other, and, except as provided by law, must affect all the parties. The exception mainly relates to mortgage foreclosures, as to which special provisions exist. The answer made to this difficulty is that no demurrer lies for making too many parties, and for such excess the party against whom a good cause of action is pleaded cannot demur. But the objection is not for a misjoinder of parties. It is for a misjoinder of causes of action. Those arising on contract and affecting all the parties may be joined. Those arising on contract but inconsistent with each other, or not affecting all the parties, cannot be joined, and the defect may be reached by demurrer. The General Term was, therefore, right in its conclusion. Statement of case. We are at liberty to allow the plaintiff to plead anew or amend upon such terms as are just, or if need be, to direct a severance of the action. (Code, § 497.) No necessity for such severance is suggested, but it seems proper to allow the plaintiff to amend upon terms which are just. The judgment of the General Term should be affirmed, with leave to the plaintiff to serve an amended complaint within twenty days from notice of the entry of this judgment, upon payment, within the same time, of costs from the service of the demurrer, including those on appeal to the General Term and to this court. All concur. Judgment accordingly. RACHEL SAULSBURY, Appellant, v. THE VILLAGE OF ITHACA, Respondent. Where, by the charter of a municipal corporation, it had power to repair streets and sidewalks and "to prevent the incumbering or obstructing the same in any manner," held, that it was liable for injuries occasioned by an omission on its part to repair or remove a sidewalk constructed without its authority, which had been, for a sufficient length of time to charge it with notice, in so defective a condition as to be dangerous for travel. (Argued October 15, 1883; decided November 20, 1883.) APPEAL from order of the General Term of the Supreme Court, in the third judicial department, reversing a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 24 Hun, 12.) This action was brought to recover damages for injuries sustained by plaintiff by falling into an excavation in one of defendant's streets. The material facts are stated in the opinion. F. E. Tibbetts for appellant. Municipal corporations are required to keep their streets and sidewalks in proper repair and free from dangerous obstructions, and are liable for injuries resulting from their neglect so to do. (Conrad v. Vil |