must be set out in the complaint as the cause of action (Stearns v. Tappin, 5 Duer, 299; see Irving v. Veicht, 3 M. & W. 90). Where the original cause of action is modified, it must be sued on as modified (Holmes v. Holmes, 9 N. Y. 528).

a. A party injured by means of an injunction should proceed on the undertaking given on the issuance of the injunction, and not otherwise (Hall v. Fisher, 20 Barb. 442). And one at whose instance a receiver has been appointed cannot be allowed to prosecute a claim for which such receiver has already recovered judgment (Tinkham v. Borst, 24 How. 246).

b. Splitting cause of action.-There is no case or dictum which requires a party to join in one action several distinct causes of action. The plaintiff may elect to sue upon them separately (Phillips v. Beruk, 16 Johns. 136; Secor v. Sturgis, 16 N. Y. 554); and it is no objection that they belong to the same family of causes, provided their identity is not the same (Staples v. Goodrich, 21 Barb. 317). An entire and indivisible demand cannot be split so as to form the basis of two actions (1 Salkeld, 658), and a writ of prohibition might issue to prevent several suits on one demand; see Jacob's Law Dict., courts; and if a party bring an action for part only of an entire and indivisible demand, the judgment in that action is a conclusive bar to a subsequent suit for the other part (Hopf v. Meyer, 42 Barb. 270; Bancroft v. Winspear 44 id. 209). There is sometimes a difficulty in discriminating between entire and several demands (21 Barb. 317). The distinction between demands or rights of action which are single. and entire, and those which are several and distinct, is, that the former immediately arise out of one and the same act or contract, and the latter out of different acts or contracts (Secor v. Sturgis, 16 N. Y. 548; and see Cashman v. Bean, 2 Hilton, 341). The distinction was pointed out in Phillips v. Beruk (16 Johns. 136), and Stevens v. Lockwood (13 Wend. 644). The question in Phillips v. Beruk was whether a recovery by the plaintiff for work and labor done in March, 1817, was a bar to another claim for work and labor done before that time, each claim being for an entirely disconnected and distinct piece of service (Staples v. Goodrich, supra). In the case of moneys lost in gaming on several occasions, a separate action may be brought for the amount lost at each sitting (Betts v. Hillman, 15 Abb. 184). An attorney suing for services must include his entire demand in one action (Beckman v. Platner, 15 Barb. 550).

e. In Farrington v. Payne (15 Johns. 432), a bed and bed-quilts were taken at the same time and by the same act, and a recovery in trover for the quilts was held to be a bar to a recovery in trover for the bed. In Smith v. Jones (15 Johns. 229), actions were brought for goods sold and delivered, the plaintiff in one claiming to recover for one barrel of potatoes, and in the other for two barrels of potatoes, all sold at the same time. The court held that the demand was entire and could not be divided. Miller v. Covert (1 Wend. 487) was the case of a sale of hay under a contract, delivered in parcels. The demand was held to be entire and indivisible.

d. In England the courts have held, as the supreme court held in Guernsey V. Carver (8 Wend. 492), that a tradesman's bill, for a series of articles delivered continuously, cannot be split (Bonsay v. Wordsworth, 36 Eng. L. & Eq. R. 283; 18 C. B. 325; Wood v. Perry, 3 Exch. R. 442). In Stevens v. Lockwood (13 Wend. 644), the plaintiff had sued on an account for property sold, work done, and for rent due, and on the trial had withdrawn some items; in the subsequent action for such items,--held the recovery in the first action was a bar. The reasoning in this case, and in Guernsey v. Carver, was dissented from in Secor v. Sturgis (supra). In Colvin v. Corwin (15 Wend. 557), two suits were brought for lottery tickets sold the defendant. On the trial of the first action, the plaintiff had judgment. That judgment was set up as a bar to the second action. On the trial it appeared that the tickets, to recover for which the suits were brought, were delivered to the defendant by two different agents of the plaintiff, at different offices, at different times, yet the supreme court held it an entire contract, and that the previous judgment was

a bar. Judge Strong, in Secor v. Sturgis (supra), says of that case (Colvin v. Corwin), "It is manifest it rests upon no sound principle, and is not law." Judgment in an action for a breach of one covenant in a lease, or other instrument, is a bar to an action for the breach of another covenant in the same lease, committed before the first suit was commenced (Bendernagle v. Cocks, 19 Wend. 207; and see Fish v. Folley, 6 Hill, 54; Stuyvesant v. Mayor of N. Y. 11 Paige, 414; Coggins v. Bulwinkle, 1 E. D. Smith, 434; Beach v. Cram, 2 N. Y. 86; Ref. Church of Westfield v. Brown, 54 Barb. 191). A promissory note cannot be the foundation of two suits, each for a part of the note (Miller v. Covert, 1 Wend. 487). A letter written by defendant to G., stating that if W. will let a certain house to G., he, defendant, would become security for the rent, and directing G. to show the letter to W., and to send the papers to him, defendant, for execution,-held to be a contract to execute a security, and not to pay rent-that the contract was an entire one, and one recovery upon it was a bar to any subsequent action (Waterbury v. Graham, 4 Sand. 220).

a. A joint cause of action, vested in two or more, cannot be split up into several at the option of those in whom it is vested (Coster v. N. Y. & Erie R. R. Comp. 6 Duer, 46). The assignee of part of a claim should unite with the owners of the other part in an action for its recovery (Bowdoin v. Coleman, 8 Abb. 431).

b. Of course a demand may be split with the consent or assent of the defendant (Cornell v. Cook, 7 Cow. 310; and see Secor v. Sturgis, 16 N. Y. 559; Mills v. Garrison, 3 Keyes, 40; Carrington v. Crocker, 37 N. Y. 336); and he probably consents by not objecting when sued by the owner of one part (see 29 Barb. 120).

c. As to splitting a demand by assignment, see ante, p. 92, j.

d. Where a party brings an action for a part only of an entire demand, and obtains judgment, he cannot subsequently avail himself of the residue of his demand by way of set-off in an action against him by the opposite party (Miller v. Covert, 1 Wend. 487). But although a party who has a claim to damages for breach of a warranty may insist upon such claim in diminution of damages when sued for the price of the article warranted, he is not bound to do so; and his omission to insist upon such defense is no bar to an action subsequently brought by him for the recovery of damages (Cook v. Moseley, 13 Wend. 277).

$141. Complaint.

The first pleading on the part of the plaintiff is the complaint.

$142. (Am'd 1851.) Complaint, what to contain.

The complaint shall contain :

1. The title of the cause, specifying the name of the court. in which the action is brought, the name of the county in which the plaintiff desires the trial to be had, and the names of the parties to the action, plaintiff and defendant;

2. A plain and concise statement of the facts constituting a cause of action, without unnecessary repetition;

3. A demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded, the amount thereof shall be stated.

Note to subdivision 1.

a. As to name of court.-If no court is named either in the complaint or in the summons, no action can be said to be commenced in any court, and semble, the summons and complaint are nullities (Ward v. Stringham, 1 Code Rep. 118); and under such circumstances the supreme court will entertain a motion to set aside such a summons and complaint; but where the name of the court is inserted in the summons, but not in the complaint, the court will disregard the omission, and hold the complaint sufficient (Van Namee v. Peoble, 9 How. 198; Merrill v. Grinnell, 10 id. 32; Van Benthuysen v. Stevens, 14 id. 70).

b. As to name of county of trial.—The place of trial should be stated in the complaint. That determines where motions are to be made, as well as where the trial is to be had (Merrill v. Grinnell, 10 How. 32; Hotchkiss v. Crocker, 15 id. 336). The statement of the name of the county in the summons does not necessarily show that it is placed there to indicate where the place of trial is to be; and the plaintiff can indicate any county as the place of trial, notwithstanding the name of a county may be mentioned in the summons (id.) Where the complaint wholly omits to mention the name of the county in which the plaintiff desires the trial to be had, it is irregular (id.); and the irregularity is not cured by reference to the summons (id.) Where in an action commenced by service of a summons, without any copy of the complaint, the summons was entitled "Supreme Court, New York," and stated that the complaint would "be filed in the office of the clerk of the city and county of New York," the defendant demanded a copy of the complaint, one was served, entitled "New York Supreme Court," indorsed Supreme Court, city and county of New York," but did not otherwise indicate the name of any county in which the plaintiff desired the trial should be had,— held that the complaint was irregular for not stating any place of trial (Darison v. Powell, 13 How. 288). But where the action is in a court of local jurisdiction, as in the New York common pleas, as the trial can only be had in one county (namely New York), the complaint would be sufficient without stating the name of the county in which the paintiff desires the trial to be (Leopold v. Poppenheimer, 1 Code Rep. 39).

66

c. A defect in the complaint in this respect may be amended (Hotchkiss v. Crocker, 15 How. 333; Davison v. Powell, 13 id. 288). The defect is not waived by defendant omitting to raise the objection until after his time to answer has expired, nor by his obtaining orders extending the time to answer (Merrill v. Grinnell, 10 How. 32). The proper course for the defendant, to take advantage of the omission, is by motion to set aside the complaint for irregularity (id.; Hall v. Huntley 1 Code Rep. N. S. 21, n). It is not a defect for which he can demur (Dorman v. Kellam, 14 How. 184; 4 Abb. 202). d. The motion to set aside for such an irregularity may be made in a judicial district where the action is in fact triable (Hotchkiss v. Crocker, 15 йow. 336); thus, where the plaintiff resided in Cayuga county, and the defendants in Broome county (the nature of the action is not stated in the report), the complaint not stating any county for trial, the defendant moved at a special term in Tioga county to set aside the complaint,-held that the action was triable either in the county of Cayuga or Broome; and as the plaintiff had not indicated in which he desired it to be, the motion might properly be made either in the district of the plaintiff's or of the defendant's residence (id.)

e. Names of the parties.-Properly, the names of all the parties, plaintiff and defendant, should be set forth in the title. If, however, only some of the parties are named in the title, but are all correctly named in the body of the complaint, it will be sufficient (Hill v. Thacter, 3 How. 407); and after the names of the parties are once stated, it is sufficient afterwards to designate them as "the plaintiff” and “the defendant" (Davison v. Savage, 6 Taunt. 121; Stephenson v. Hunter, id. 406; see Stanley v. Chappell, 8 Cow. 235).

Except in the cases provided for by § 175, the names of the parties should be correctly stated; if they be not, the remedy is not by motion (see ante, p. 125, b). A mere misnomer is only a formal error which may be amended before or at the trial, or afterwards (Barnes v. Perine, 9 Barb. 202; Tracer v. Eighth Ave. R. R. Co. 6 Abb. N. S. 46; 3 Trans. App. 203; B'k of Havana v. McGee, 20 N. Y. 362). Where the true name of the defendant was Dean S. Manley, and he was described in the summons and complaint, served together, as Dennis S. Manley, it was held that the proceedings were irregular; but as the notice of motion was subscribed "William H. Andrews, attorney for defendant," it was a general appearance in the action, and therefore a waiver of the irregularity (Dole v. Manley, 11 How. 138; Baxter v. Arnold, 9 How. 445). In Walker v. Parkins (9 Jur. 665; 14 Law Jour. Rep. 214 Q. B.; 1 New Prac. Cas. 199; 2 D. & L. 982) the plaintiff was described in the writ "Walker & Co." A motion to set aside the writ for not setting out the names of the plaintiffs was denied, and held that non constat," but Walker & Co. meant the plaintiff alone, and no more than one person. Where the action was brought by a woman in her maiden name,-held no ground for dismissing the complaint (Traver v. Eighth Ave. R. R. Co. supra).

as

a. It is presumed that in stating the names of the parties it is not necessary to add any description, as to say, A. B., executor, &c.; and if such description is inserted, it is mere surplusage, and does not present a fact which can be traversed (Sheldon v. Hoy, 11 How. 15; Merritt v. Seamen, 6 N. Y. 168); but saying A. B., as executor, &c., is very different from merely stating A. B., executor, &c. To say as executor, &c., is alleging the character in which the plaintiff sues, as to which see infra.

b. Character in which plaintiff sues should be stated.—A plaintiff may sue either as an individual for his individual benefit and as the real party in interest, and in that capacity as the original party, to whom the cause of action accrued, or as the assignee of the party to whom the action accrued. Or the plaintiff may be suing in a representative character, as administrator, committee, executor, guardian, public officer, receiver, or trustee. Where nothing appears to the contrary, it is presumed that the plaintiff has legal capacity to sue, is the real party in interest, suing as an individual for his individual benefit, and, therefore, in such a case, nothing need be said in the complaint as to the character in which the plaintiff is suing; and it being shown, by the facts stated, that a cause of action accrued to the plaintiff, it is presumed that the cause of action continues in him, and he need not make any allegation as to that. A plaintiff who describes himself as " A. B., president," &c., or "A. B., administrator of," &c., or "A. B, assignee of," &c., without further indicating the character in which he sues, will be taken to be suing as an individual (Sheldon v. Hoy, 11 How. 12; Root v. Price, 22 id. 372; Butterfield v. Macomber, id. 150; Merritt v. Seaman, 6 N. Y. 168; Forrest v. Mayor of N. Y. 13 Abb. 350; Scrantom v. Farmers' B'k of Rochester, 33 Barb. 527; Hallett v. Harrower, id. 537). The addition of the word survivor" to the name of a defendant sued upon a joint and several obligation is mere surplusage, the promise being laid as an individual one, the action is to be deemed one on the several contract (Bogert v. Vermilya, 10 N. Y. 447). As to the effect of the word “surety 66 or security" added to the name of an endorser of a note (Bradford v. Cory, 5 Barb. 461). The addition of "junior" to a name is a mere description, and is no part of the name. Neither is the middle letter between the Christian and surname any part of the name; the law knows only one Christian name (The People v. Cook, 14 Barb. 261). Where the complaint alleged that "the plaintiff is sheriff of the city and county of New York," it was held a sufficient allegation of his official character (Kelly v. Breusing, 33 Barb. 123). If the plaintiff has not the capacity to sue, as being an infant, or if he has divested himself of the right of action which had accrued to him, it is matter of defense coming from the defendant. But if it appears that the cause of action accrued to some other body than the plaintiff, then the defendant has a right to be informed by the complaint how the plaintiff became the owner of the demand, whether by purchase, operation of

law, or how otherwise; and the facts should be stated by which the plaintiff became such owner (Russel v. Clapp, 7 Barb. 482; Bentley v. Jones, 4 How. 202; M'Murray v. Thomas, 5 id. 14; Parker v. Totten, 10 id. 233; Thomas v. Desmond, 12 id. 321; Freeman v. Fulton Fire Ins. Co. 14 Abb. 407). In other words, the plaintiff must show title (see post, Plaintiff must show title). The capacity of the plaintiff to sue is independent of the cause of action (B'k of Lowville v. Edwards, 11 How. 216; Johnson v. Kemp, 11 id. 186; B'k of Насапа т. Wickham, 16 id. 97).

a. Where the plaintiff is an assignee, the complaint should allege the fact of the assignment. In so doing, he need not state that there was any consideration for the assignment, nor whether it was in writing or by parol (Vogel v. Babcock, 1 Abb. 177; Horner v. Wood, 15 Barb. 372; Martin v. Kanouse, 2 Abb. 331; and see Gregory v. Freeman, 2 Zab. R. 405; Artcher v. Zeh, 6 Hill, 200; see ante, pp. 95, k, 94, d). And if the assignment be by a corporation and the transfer is prima facie lawful, the complaint need not aver that the directors were authorized to make the assignment (Nelson v. Eaton, 16 Abb. 113); where the complaint showed on its face that another person that the plaintiff was the owner of the subject of the action, it was held insufficient (Palmer v. Smedley, 6 Abb. 205). An allegation "that Cobb duly assigned and transferred all his interest in the contract to the plaintiff Grant, and the plaintiff Ludlam became interested by a sale and assignment to him of a part of Grant's interest," was held sufficient (Horner v. Wood, supra; Fowler v. N. Y. Indem. Ins. Co. 23 Barb. 151; Morange v. Mudge, 6 Abb. 243); and an allegation that A. sold, and transferred, and set over to the plaintiff the said judgment, will be construed to mean that the judgment, or whatever may have been the subjectmatter, was assigned absolutely. If the assignment was subject to any material condition affecting the plaintiff's right to recover, it is matter to come from the defendant by way of defense (Martin v. Kanouse, 2 Abb. 331); and where the complaint showed that the alleged cause of action accrued to a third party, and the only manner in which the plaintiff showed title in himself was an allegation that "the plaintiff is now the sole owner of the said demand" on demurrer (the report does not say on what ground)—it was held that the allegation was of a conclusion of law and not of a fact, and showed no title in the plaintiff (Thomas v. Desmond, 12 How. 321). An allegation that plaintiff became the owner of the cause of action by purchase was held sufficient allegation of title as assignee of the party to whom the cause of action accrued (Prindle v. Caruthers, 15 N. Y. 427).

b. Executor or administrator.—In an action by an executor or administrator, as such, the complaint should, by some appropriate averment, show that the action is by the party in his representative character, and not as an individual. It is not necessary that he should make profert of the letters testamentary or of administration; it is sufficient if he aver that he sustains the character either of executor or administrator, as the case may be; and if the averment is denied, he produces on the trial the letters granted to him as evidence of his title (Bright v. Currie, 5 Sand. 433; Wells v. Webster, 9 How. 251). Where the complaint alleged that "plaintiff is the executor of the last will and testament of J. W., deceased, and that he had been duly and legally authorized to act as such executor," and further stated that the defendant was indebted to the plaintiff as such executor, on demurrer that plaintiff had not capacity to sue, the complaint was held sufficient (Wells v. Webster, supra). In an action commenced prior to the code taking effect, it was held that merely describing the plaintiff in the commencement of the declaration, as "C. H. M., executor of the last will and testament of J. S. deceased, plaintiff," that being the only allegation indicating that the action was brought by the plaintiff in any other than his individual character, and followed by a statement of a cause of action accruing to himself personally, did not make the action one by the plaintiff as executor, so as to admit a defense of set-off against the plaintiff's testator, or to warrant a judgment against the plaintiff as executor, to be levied of the testator's goods in his hands (Merritt v. Seaman,