—The two counts in the complaint are for the same breach of contract or wrongful act. An inspection shows it. The nature of the action permits a complaint founded either on a breach of contract, or on a breach of duty. The distinction before the Code of Procedure would have been designated by the terms assumpsit and tort—sometimes ex contractu, ex delicto.. The pleader might take his choice, but he could not unite both forms in the same declaration. Under the Code, the courts hold that there can be but one statement of the same cause of action in the complaint.
But assuming, as the learned counsel for the plaintiff insists, that each count states a different cause of action, can the complaint then be upheld ?
It is provided by subdivision 1, § 167, of the Code, that several causes of action may be united, where they all arise out of the same transaction, or transactions connected with the same subject of action. There can be-no claim to unite these two counts, unless it be by virtue of the subdivision of the section just referred to.
If these counts represent different causes of action, then, assuredly, the transactions are not the same, nor are they con.neeted with the same subject of action. The complaint carries internal evidence of this truth.
The position so assumed is a “felo de se.” The only distinction in the effect of the former and the latter objection to the complaint is, that in the latter case the remedy would be by demurrer, while in the former it is by motion to compel the plaintiff to elect between his counts.
I think it quite clear that the subject of these two counts occurred in respect to the same voyage, by the same vessel and route, and for-the same persons, and that the two counts "are only different forms of stating the same thing.
The attempt in this pleading, if the plaintiff’s counsel be correct, is similar in some respects to the case of Sweet a. Ingerson (12 How. Pr., 331). With great respect to the learned court which decided that case, I think the proper remedy there should have been by motion.
*75The complaint there seems to present two statements of the same subject. As the parties conceded that the complaint presented two different causes of action, there could be no objection to deciding it on that assumption, and as there presented, on demurrer.
A good illustration of two causes of action, arising out of the same transaction,«is shown in the case of Badger a. Benedict (4 Abbotts' Pr., 176). The defendant there agreed to print a memoir for the plaintiff, who furnished the stereotype plates for printing the work. There was an alleged breach of the contract for printing, and an injury to the plaintiff’s stereotype plates by the defendant. From the argument, the inj ury appears to have occurred while performing the work.
The circumstances, as stated in the complaint in this action, do not, in my opinion, permit the inference that there is more than one transaction stated.
The case of the Orange County Bank a. Brown (3 Wend., 158), to which I have been referred, decides, that such an action as this may be brought in form ex contractu or ex delicto, and that the pleader may set out his single cause of action in as many different counts as he pleases; still, these counts must all conform in their nature, so as to be all ex contractu, or all ex delicto. If the plaintiff states the custom or duty, and also relies on an undertaking, the action is still in form ex contractu.
So much of the decision as sanctions numerous counts for the same cause of action, has been abrogated by the Code. The other principles are still substantially in force.
Applying the rule in that case to the present, the first count is ex contractu ; the second is ex delicto.
I do not, however, perceive any thing in that case essential to the decision of the question here presented, whether the plaintiff shall be permitted to state the samé cause of action, in different forms, in the same complaint.
The motion must be granted, so far as to require the plaintiff to elect which count of his complaint he will adopt as the correct statement of his action, and that the other be stricken out as redundant or irrelevant. The notice of motion "is, in other respects, too indefinite for any action, nor do I think any is required. Ten dollars costs to the prevailing party may abide the event of the action.