Note on Pleading in Action by Broker Employed by Both Parties.

NOTE ON PLEADING IN ACTION BY BROKER EMPLOYED BY BOTH PARTIES.

The allegations of the complaint were as follows:

"1. That plaintiff is and for many years has been a broker engaged in the business of buying and selling real and personal property.

2. That the defendant is, and during the times therein set forth, was a corporation organized and existing under the laws of the State of New Jersey, owning a large brewery in the city of Newark, New Jersey, and engaged in the business of brewing in the said city, and transacting business in the city of New York.

"3. That plaintiff, on or about the 2nd of February, 1889, in the city of New York, at defendant's request, introduced one Gottfried Krueger, then and now the President of defendant, to one Robert Bliss, for the purpose of effecting a sale of the brewery and business of defendant.

4. That thereafter and on the same day in the city of New York, the defendant agreed with plaintiff that if said Robert Bliss, or his assigns, purchased defendant's said brewery and business, defendant would pay plaintiff for his services as broker his usual commissions therefor.

"5. That during the months of February, April, May, June and July, 1889, plaintiff rendered defendant, at its request, services in the city of New York and elsewhere as its broker in effectuating said contemplated sale; which was on or about the 15th day of July, 1889, consummated by the purchase of said brewery and business by the United States Brewing Company, the assignee of said Bliss, in the city of New York, for the sum of one million eight hundred and twenty-two thousand dollars.

“6. The plaintiff's services were reasonably worth the sum of forty-five thousand five hundred dollars, to wit: a commission of two and one-half per cent. (2 1-2), upon the consideration of said sale, and defendant promised and agreed in the city of New York, to pay said sum therefor.

That defendant has not paid said sum or any part thereof, and the whole amount thereof remains due and owing from defendant to plaintiff with interest from said 15th day of July, 1889."

The court at General Term, in its opinion, after reciting the substance of the complaint, said: "The plaintiff by his complaint thus establishes for the purposes of this action his relation to the defend

ant.

Stokes v. Stokes.

He alleges that he was a broker; that he rendered services to defendant as its broker in effectuating the sale, and that such services were reasonably worth the sum for which he demands judgment, and to entitle him to recover in this action, he must prove that he was employed by defendant as its broker, to render services as a broker; that he rendered such services, and that the value of such services was the sum for which he seeks to recover judgment, and he cannot ask to recover upon the pleadings for any other or different service rendered to defendant or for services rendered in another or different relation than that which he alleges did exist in his complaint." . . . The testimony "sustains the allegation of the complaint that the relation of the plaintiff to the defendant was that of a broker engaged in an endeavor to effectuate a sale of the defendant's property." . . . The claim by plaintiff that he acted as a mere middleman and not a broker, is negatived by his own complaint and by his own testimony upon the trial.

STOKES v. STOKES.

N. Y. Supreme Court, Special Term, First District; June, 1894.

1. Judgments and decrees.] An action for several libels, alleged as separate causes of action, but for which one entire sum without apportionment is demanded as damages, may be severed under Code Civ. Pro., § 1220,* after damages have been ascertained by a sheriff's jury as to one of the causes of action to which defendant has failed to answer over on the overruling of his demurrer thereto, so as to allow final judgment to be entered as to the cause of action demurred to, and the other causes of action to be proceeded on in a separate action.

*Code Civ. Pro., § 1220, provides that “Where an issue of law and an issue of fact arise, with respect to different causes of action set forth in the complaint, and final judgment can be taken, with respect to one or more of the causes of action, without prejudice to either party in maintaining the action, or defense or counterclaim, with respect to the other causes of action, or in the recovery of final judgment upon the whole issue, the court may, in its discretion, and at any stage of the action, direct that the action be divided into two or more actions, as the case requires."

Stokes 7. Stokes.

2. The same.] In such a case, however, owing to plaintiff's delay in applying for a severance, the application will only be granted on condition that he pay the costs of the action to date.

Motion for an order to divide an action into two actions.

The action was for several libels brought by Edward S. Stokes against William E. D. Stokes.

The complaint alleged three separate causes of actiona for which plaintiff demanded $250,000 damages without apportioning it to the several causes of action. Defend-ant demurred to the first cause of action and answered the other two. The demurrer was argued and overruled, and the interlocutory judgment entered thereon affirmed on appeal with leave to defendant to answer over on the payment of costs. Defendant having failed to answer over, plaintiff caused the damages sustained from the cause of action demurred to be ascertained by a sheriff's jury, and now moves to have the action divided into two actions, and to be permitted to enter judgment for the damages so assessed, and to proceed on the remaining causes of action in a separate action.

Holmes & Adams, for the motion.

Benjamin F. Tracy, opposed.

PATTERSON, J.-This is a motion for leave to sever the action, which was brought to recover damages for alleged libels; the complaint containing three separate causes of action. The application is made under § 1220 of the Code of Civil Procedure, which authorizes the court, in its discretion, where an issue of law and an issue of fact arise with respect to different causes of action, and final judgment can be taken on one or more of the causes of action without prejudice to either party as to the other causes of action, to divide the action into two or more VOL. XXXI.—30

Stokes v. Stokes.

actions as the case may require, and this, by express terms of the statute, may be done at any stage of the action.

In this case the defendant demurred to the first of the causes of action and answered as to the second and third. The issue of law on the demurrer was decided in favor of the plaintiff at Special Term, and that decision was affirmed at the General Term. Subsequently, damages on that cause of action were assessed by a sheriff's jury and fixed at the sum of one thousand dollars. The issues of fact have not yet been tried. It is conceded that three separate suits might have been instituted on the three separate alleged libels, and it must be further conceded that a motion to divide may be made at any stage of the

case.

This is a new enactment, of doubtful wisdom when applied to such actions as this, but it cannot be ignored. Final judgment certainly can be taken as to the first cause of action, and the issues on the other two retained for trial unless there is something in the construction of the action itself which as a necessary consequence would permit but one judgment as to the three causes of action. It seems to me that a severance of the action would not be prejudicial to the rights of either party. But one cause of action has been disposed of, the others remain, and the defenses interposed to them may be fully presented and the defendant have every advantage of them. The section of the Code referred to apparently covers such cases as the present. The serious objection to the motion, and the one that has been most earnestly and forcibly argued, is that there can be but one final judgment in any action and that where that action sounds in tort and

There is good authority for saying that this tradition of the common law courts, that there can never be but one final judgment in a cause, is no longer a safe guide. Chancery always had the power to give successive decrees as fast as the equities of separable parts of the cause were finally ascertained; and our courts inherit this power in equity causes (under Code Civ. Pro., § 217), and this includes

Stokes v. Stokes.

for the several causes of action the ad damnum is fixed at one entire sum, there can be no separation and distribution of that amount, and an application made of one part of it to one cause of action and the remainder to the others. That would undoubtedly be so were it not for the section of the Code under consideration; but that section allows the one action to be split up into two or more actions, and evidently contemplates that upon each action a distinct judgment may be entered, and in effect so severs the subject matters of the several causes of action as to construct from them separate actions, in each of which damages may be recovered. If that view of the effect of a separation and construction of independent actions under the statute is correct, the argument that but one final judgment can be entered has no place in the discussion. To each action would follow its own appropriate judgment. There is no decided case reported on the subject, and the question is a new and important one, and the objections have been very skilfully argued, but under the sweeping terms of this section of the Code I think they are untenable. That the severance should have been made before the assessment of damages was had as to the first cause of action would have been a strong ground of denial of the motion, were it not that the Code

the practice of reserving even in an otherwise complete final decree, the right to a party to apply on the foot of the decree for further directions.

The power in common law actions extended by the Code, to join many causes of action in one complaint and to have a separate trial of separate issues, takes away the only substantial reason for the old tradition; and the formality of severing the action obviates formal objections.

But even without reference to these considerations, it is not a very uncommon thing to have two final judgments, where a judgment is opened, but allowed to stand as security (25 Abb. N. C. 56).

So although the old practice after affirmance on appeal was to enter an entire new judgment, now the old judgment stands, and a new or second final judgment is entered for the costs of appeal in the cause.