#### Arthur Leary, Ex’r, Resp’t, *v.*John H. Melcher *et al.,*Ex’rs, App’lts.

*(Supreme Court, General Term, First Department,*

*Filed May 15, 1891.)*

Pleading—Single equitable cause of action.

The plaintiff claimed to he entitled to a fund which his testator had a right to dispose of-under the will of S. The executors of S. were by the complaint called upon to account; these executors were alleged to have distributed some of the fund to some of the defendants, and such defendants as received it were called upon to return it. *Held,*that, in equity, these allegations were a statement of but one cause of action; and that the court properly refused to direct the plaintiff to state and number separately the causes of action alleged in the complaint against the various parties defendant.

Appeal from an order made at chambers overruling a motion (1) to compel the plaintiff to make the complaint more definite and certain in ten particulars ; (2) to strike out certain allegations *775alleged to be irrelevant and redundant, and (3) to compel the plaintiff to separately state and number causes of action.

*John E. Burrill*and *George*Zabriskie, for app’lts; *Hoadley, Lauterbach & Johnson,*for resp’t.

Lawrence, J.

In disposing of the motion Patterson, J., delivered the following opinion:

> “ This is a motion to compel the plaintiff to reform his complaint in three particulars: First, to make it more definite and certain respecting specific subjects mentioned in the notice of motion; secondly, to strike out the allegations in the complaint relating to plaintiff’s appointment as a trustee under the marriage settlement of Mr. and Mrs. Paget, and third, to separately state and number the causes of action in the complaint alleged against various sets of trustees referred to in the notice and against certain individuals. Concerning the second subdivision of this motion, it is sufficient to say that the mention of the trusteeship of the plaintiff under the marriage settlement referred to cannot be considered altogether irrelevant and redundant, for the plaintiff is simply bringing to the notice of the court in an equity suit a fact which may be of consequence and as to which the court should be advised, and it is not improper to set forth in the complaint. As to the third ground upon which the reformation of the complaint is sought, undoubtedly, if there were separate and independent causes of action set up against the several sets of parties, as claimed by the defendants, those causes of action should be separately stated. But it is a misapprehension of the real scope of this action to consider that there is an independent and different cause of action against different sets or groups of defendants. There is but one suit, a suit in equity for an accounting, the plaintiff claiming that he is entitled to a certain fund, of which his testator had the absolute right of disposition under the thirteenth clause of the will of Paran Stevens. The executors of that will are called upon to account, and the fund which the plaintiff seeks to realize, or some part of it, he claims has been distributed by the executors of Paran Stevens’ will among all or some of the defendants in. this suit, and those defendants who have received a portion of the fund in the distribution referred to, are called upon in this suit to make good to the plaintiff the amounts received by them respectively. There is one entire cause of action in equity, and it is not like an action to enforce common law claims. The question involved here is not as to the sufficiency of the complaint upon demurrer, but as to whether or not the cause of action is stated in such way that the defendants can plead to the bill There is but a single cause of action attempted to be set up, and whether it is good or bad on demurrer we need not concern ourselves with now. Concerning the specific matters referred to in the first subdivision of the notice of motion, after much time spent in going through the voluminous exhibits annexed to the complaint to ascertain what the situation of the parties .to this suit is relatively to each other, and gathering from the exhibits, consisting of complicated wills, decrees and agreements, what might very much better have *776been stated as direct allegations in the complaint, I find that the complaint is sufficiently definite in all the matters embraced within the various items oí the first branch of the motion. It would require too much time to specify particularly the reasons which lead me to this conclusion, after an inspection and analysis of these complicated papers, but the result of my examination is that the motion must be denied, with ten dollars costs.”

We are of the opinion that the disposition of the case made by the learned justice at chambers was correct, and that nothing can be added to the reasons stated by him in the foregoing opinion.

The order below will, therefore, be affirmed, with ten dollars eosts and disbursements.

Van Brunt, P. J., and Daniels, J., concur.