APPEAL by the plaintiff, Benjamin Salter, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of February, 1912, upon the decision of the court, rendered after a trial at the New York Special Term,
sustaining the defendant's demurrer to the complaint upon the ground of improper joinder of causes of action.
Thomas W. Churchill of counsel [Ernest W. Marlow with him on the brief],Churchill & Marlow, attorneys, for the appellant.
John Hall Jones, for the respondent.
The first cause of action set up in the complaint alleges that the defendant is a National bank; that at divers times between the 10th day of February, 1910, and the 1st day of November, 1910, the plaintiff delivered various sums of money to the defendant, which it received on deposit, and agreed to repay to this plaintiff, or to his order, on demand; that on the 10th of February, 1911, there remained in the hands of the defendant of the said money so deposited a balance undrawn of $5,059.75; that on that day plaintiff duly demanded repayment of said balance; that defendant has paid $56.75, leaving a balance due of $5,003, which it refused to pay. The second cause of action alleges that on or about the 19th of August, 1910, at Friendship, N.Y. , the Citizens' National Bank made its certain check or draft directed to the National Park Bank to the order of plaintiff for the sum of $5,000, which, on the 22d of August, 1910, plaintiff delivered to defendant duly indorsed for deposit to the plaintiff's account with defendant bank; that thereafter, and before the 10th of February, 1911, the exact time being unknown to plaintiff, the defendant, without the knowledge or consent of the plaintiff, unlawfully converted said check or draft or the proceeds thereof to its own use. The third cause of action alleges that the defendant negligently employed and allowed to act as its vice-president and agent one Belling, among other things, for the purpose of dealing with customers and depositors of the defendant and receiving checks and money for deposit; that he was not a proper person to act as an officer of a banking corporation, and that by reason thereof and of his dishonest habits and traits, the said Belling was wholly unfit and incompetent to act as such agent and officer, which defendant, its president and board of directors well
knew; that on or about the 22d of August, 1910, plaintiff made a deposit of a check or draft for the sum of $5,000 with defendant by delivering the same to the said Belling for deposit with the defendant to the credit of this plaintiff; that said Belling, while acting in the course of his duties as agent and officer of the defendant bank, wrongfully and unlawfully took said check, and wrongfully disposed of the same and converted it to his own use.
In short, there are combined in one complaint an action on contract, an action for conversion, and an action for negligence for conversion by an unfit agent.
The defendant demurred upon the ground that causes of action had been improperly united, and the demurrer having been sustained, the plaintiff appeals.
Section 484 of the Code of Civil Procedure provides that 'The plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable or both, where they are brought to recover, as follows: 1. Upon contract, express or implied. * * * 6. For injuries to personal property. * * * 9. Upon claims arising out of the same transaction or transactions, connected with the same subject of action, and not included within one of the foregoing subdivisions of this section. * * * But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other. * * *.'
The complaint nowhere alleges that the three causes of action all arose out of the same transaction. But this must 'appear upon the face of the complaint.' On the contrary, it appears that they did not. The first cause of action alleges that 'various' deposits were made at 'divers' times over a period stated, and that on a certain date a certain 'balance' was due. The other two causes of action allege the conversion of a certain check. Furthermore, the causes of action are utterly inconsistent. The first is on contract, ...