#### John McKesson, Jr., et al., Plaintiffs, *v.*The Russian Co., Defendant.

(Supreme Court, New York Special Term,

April, 1899.)

Pleading — When a complaint states but one cause of action, the defendant cannot demilr and also answer.

A complaint to recover damages for a failure of the defendant to deliver certain advertising matter, when accompanied by an alie-. gation that such failure compelled the plaintiffs to print and distribute an additional sheet of Such matter, states only a single cause of action,'as the subsequent allegation bears- only upon the special . damages.

■ A defendant cannot demur to a part and answer a part of á single cause of action, and in such casé the plaintiffs should move to strike" out the demurrer and not attempt, by á motion; to compel the- defendant to elect between his answer and his demurrer.

Motion to compel the defendant to elect between its answer and demurrer. '

The action is for the recovery of damages claimed in consequence of the defendant’s, alleged failure to deliver certain advertising .matter. /

The material allegations of the complaint are, (1) that the plaintiffs are copartners; (2) that the defendant is a foreign corporation and a common carrier of goods for hire; (3) that for. a *97certain compensation it agreed to forward for the plaintiffs from the borough of Manhattan, New York city, to London, England, via the steamship “ Campania,” and to deliver to certain publishers in said last-mentioned place, one certain case of advertising matter, the property of the plaintiffs; (4) that the defendant failed to, do so, and (5)' that in consequence thereof the use of such advertising matter, which cost plaintiffs $146.40, was wholly lost to them, and following is the exact phraseology of the remainder of the complaint: “ (6) That solely by reason of defendant’s negligence, as aforesaid, in failing to forward said advertising matter by the steamship “ Campania,” plaintiffs were compelled to and did print and distribute an additional sheet of - advertising matter, at an expense of and to the plaintiffs’ further damage in the sum of $150.

“ That no part of $146.40 and $150 has been paid, although duly demanded.

“ Wherefore plaintiffs demand judgment against the defendant for-the sum of $296.40, with-interest thereon, besides the costs of this action.” ,

The defendant served an answer denying the third, fourth and fifth allegations of the complaint, and at the same time separately served a demurrer “ to the second and separate cause of action stated in the allegation six of the complaint herein, on the ground that said allegation does not, state facts sufficient to constitute a cause of action.”

Whereupon the plaintiffs made the motion referred to.

Lavina Lally, for motion.

Isaac A. Hourwich, opposed.

Giegerich, J.

The matters set forth in the sixth paragraph or subdivision of the complaint have a bearing only upon the special .damages resulting from the defendant’s failure to deliver the advertising matter in question, and hence do not constitute a separate cause of action. Vanderslice v. Newton, 4 N. Y. 130; Hallock v. Belcher, 42 Barb. 199; Abbott’s Brief on the Pleadings, § 210, p. 190. The complaint is thus found to contain but a single cause of action, and, therefore, the defendant could not demur to a part and answer another portion thereof. Code of Civ. Pro., § 492; Cobb v. Frazee, 4 How. Pr. 413; Ingraham v. Baldwin, 12 Barb; 9 *98•As the demurrer could, under the circumstances, be interposed only to the whole complaint. (Code Civ. Pro., § 492),- it is manifest that the one served is defective, and should not stand. There appears, however, to have been a. misconception by the plaintiffs as to their appropriate remedy. Instead of moving to strike out the demurrer, which would be the proper practice (Cobb v. Frazee, *supra;*Spellman v. Weider, 5 How. Pr. 5; Smith v. Brown, 6 id. 383), they have moved to compel the defendant to. elect whether it will abide by its answer or by the demurrer. The latter remedy is proper only where the defendant both demurs and answers to the same pleading, but here the 'situation is entirely different, the defendant having demurred to a part, and answered another part of the complaint containing, as seen, but one cause of action, stated in one count. Still, the defect is not fatal, since the notice of motion prays *“*for such other and further relief as to the court .may ■seem meet,” and, under these circumstances, the court is empowered, in its discretion, to grant other relief than prayed for. Van Slyke v. Hyatt, 46 N. Y. 259, 264; Myers v. Rosenback, *7*Misc. Rep. 560, 561; aff’d, 9 id. 89; 1 Ency. PL & Pr. 639. The- demurrer is accordingly stricken out, with leave, however, to the defendant within ten days to withdraw the said answer to a portion of the complaint, and to serve an answer to the entire complaint, upon payment of $10 costs to the plaintiffs.

Ordered accordingly.