The defendant Ferguson & Son demurred to the complaint upon the grounds (1) that it did not state facts sufficient to constitute a cause of action against it; and (2) that causes of action were improperly united. The demurrer was sustained upon the first ground and this court is about to affirm the judgment upon the second ground.
*182Irrespective of the question whether an interlocutory judgment sustaining a demurrer upon the ground that the complaint does not state a cause of action can be sustained on appeal upon the ground that causes of action have been improperly united, I am of the opinion that neither ground of demurrer is good. When the validity of a pleading is challenged, the allegations therein are not to be construed strictly against the pleader. (Rochester R. Co. v. Robinson, 133 N. Y. 242.) “ If the reasonable import of a complaint is a cause of action, a demurrer does not lie because the language of the complaint permits an exclusion of such cause of action.” (Naylor v. N. Y. C. & H. R. R. R. Co., 119 App. Div. 24; Olcott v. Carroll, 39 N. Y. 436 ; Ketchum v. Van Dusen, 11 App. Div. 332.) The facts stated are not only admitted by the demurrer but also all facts which can be implied from the allegations by reasonable and fair intendment. (Coatsworth v. Lehigh Valley R. Co., 156 N. Y. 451; Sanders v. Soutter, 126 id. 195; Lesser v. Bradford Realty Co., 116 App. Div. 212.)
The complaint after charging that the defendant the New England Navigation Company was “ engaged in the carrying and transporting of goods, wares and merchandise as a common carrier for hire, and operating the Bridgeport, New Haven, Norwich & Providence lines, and the Eall Eiver and New Bedford lines,” and that the defendant Ferguson & Son was “ engaged in the trucking and express business and the carrying and transporting of goods, wares and merchandise for hire in and about the Borough of Manhattan, City and State of New York, as a common carrier for hire,” alleged:
“Fourth. That heretofore and on or about the 26th day of December, 1906, plaintiffs above-named, in the Borough of Manhattan, City and State of New York, delivered to defendants above-named, one case of goods, wares and merchandise - * * properly packed, marked and consigned to Jordan Marsh Company, Boston, Mass., which said defendants accepted as such common carriers for the purposes of carrying and delivering them to said consignee for and in consideration of a reasonable reward to be paid therefor.
“Fifth. That said defendants have wholly failed and omitted to deliver the said case of goods, wares and merchandise to said con*183signee, although due demand has been made therefor, and said defendants now refuse to deliver the same.”
Then follows an allegation “ That by reason of said defendants’ default and omission as hereinbefore alleged ” plaintiffs have been damaged, etc. Assuming, as we must under the authorities cited, that these allegations are true, then the agreement was made, not with one defendant, but with both, and the case of goods was delivered, not to one, but to both; and if this be true, then a good cause of action is alleged against both defendants. It was a joint obligation, and for a failure to perform both are jointly liable.
Nor do I think there is more than one cause of action alleged. The only agreement under which the goods were delivered for transportation is that set out in the 4th paragraph of the complaint above quoted. The fact that Ferguson & Son did business in the borough of Manhattan and the navigation company at the other places stated, in no way prevented their entering into a joint contract to transport goods for hire from the city of New York to Boston. The 4th paragraph of the complaint, it will be observed, alleges that the plaintiffs “ delivered to defendants ” the goods in question, “which said defendants accepted * “ * for the purposes of carrying and delivering'them to said consignee.”
The prevailing opinion proceeds upon what seems to me to be an erroneous and unwarranted assumption, viz., that sepai'ate contracts were made with the defendants Ferguson & Son and the New England Navigation Company. Such assumption is erroneous because no such fact is pleaded, and it cannot be assumed for the purpose of destroying the contract which is pleaded. It is unwarranted because there are no allegations in the complaint from which such fact can be inferred.
The demurrer was sustained upon the ground that the complaint does not state facts sufficient to constitute a cause of action against Ferguson & Son. This is all that the Special Term decided. This is all the judgment determines. The Special Term, as appears from its decision and judgment, did not pass upon the question of whether causes of action were improperly united. Until it has done so, this court has no right to determine that question. (Matter of Fitzsimons, 174 N. Y. 15 ; Matter of Chapmam, 162 id. 456.) It is not here for consideration. All that *184the appeal brings up is whether the complaint states facts sufficient to constitute a cause of action against the respondents, and we cannot affirm a judgment that it does not state such facts upon the ground that causes of action have been improperly united.
I am of the opinion that the judgment appealed from should be reversed, with leave to the respondents to withdraw their demurrer and answer, on payment of the costs in this court and in the court below.
Judgment affirmed, with costs, with leave to appellants to amend on payment of costs. Settle order on notice.