The second count of the complaint, sets out no specific cause of action. If it be considered as a part of the first, it is then hypothetical and inconsistent, and attempts to unite two separate and distinct causes of action in the same count, which cannot be done. The whole statement is indefinite, irrelevant, hypothetical, argumentative, and uncertain, and was properly stricken out under section 160. It attempts to unite a cause of action in tort, with an action on implied contract, which cannot be done under section 167. (See 6 How. 145, 470, 8 Id. 470.) The defendant might have perhaps demurred to this count, but I think he had his remedy also by motion. The order of special term should be affirmed with $10 costs and disbursements, but plaintiff should have leave to amend on payment of the costs below and of this appeal, within twenty days.
The court below suggested in its opinion that the causes of action attempted to be set up in the first and second counts, might be united under the first subdivision of section 167, as they arose out of the same transaction or same subject matter. But that subdivision does not apply to different causes of action, such as uniting what was formerly assumpsit, with case for wilful negligence or malfeasance, such as are attempted to be united here. The causes of action must all belong to the same class. (2 Code Rep. 165; 1 Whit. Pr. 723. 4, &c.)