Dorlon agt. Lewis.

have been one day too late. But the 412th section of the Code declares that "where service is by mail, it shall be double the time required in case of personal service." The language of this provision, though substantially the same as that of the 7th Rule in force at the time the Code was adopted, is not, perhaps, the most happy that might have been selected to express what was intended. To say that "service by mail" shall be "double time," conveys of itself no distinct idea to the mind. It is, to say the least, an awkward expression. Lapse of time forms no essential ingredient in the act of serving a paper. And yet it is the law that when the act is performed in a particular way, it, that is, the service, shall be double the time required when the act of serving the paper is performed in another manner.

But I believe this rule has always been construed to mean that where the service of a paper by one party, as, for example, a pleading, or a notice, has the effect of setting time to run against the opposite party, the time which thus begins to run shall be twice as long when the service is by mail, as when it is personal. Thus, the 143d section declares that a demurrer or answer must be served within twenty days after the service of the copy of the complaint. The time begins to run from the service. If, instead of serving the complaint personally, the plaintiff elects to serve it by mail, the time which thus begins to run against the defendant is forty days instead of the twenty days otherwise allowed. So, either party may give to the other a notice of trial. It must be ten days before the Court. But if he will serve his notice by mail, the time is doubled, and the notice must be served twenty days before the court.

The rule is applicable to appeals like that which is the subject of this motion. The right of appeal is limited to thirty days after "written notice," &c. The object of giving such notice is to terminate the right of appeal. The time for the adverse party to appeal begins to run from the time of the service of notice. If, therefore, the party giving the notice chooses to serve his notice by mail, as he may, he also gives the other party double the time he would have had if the service had been personal. The appeal in this case, therefore, was in time.

Nor are the other objections to the regularity of the appeal well

Cahoon agt. The Bank of Utica.

taken. The notice of substitution was sufficient. The plaintiff's attorney is mistaken in supposing he has a right to know how the substitution was effected. It was enough that he was served with a notice by one attorney that he had, in fact, been substituted in the place of the attorney who had before appeared. Nor was any security necessary to sustain the appeal. The chapter of the Code which authorizes an appeal in a case like this, does not require any security except for the purpose of staying proceedings.

The motion must be denied, and I think it should be with costs. The plaintiff's attorney gave notice, with the notice of his motion, that he would not ask for costs upon the motion, but this ought not to relieve him from the payment of the costs of resisting the motion. The defendant was obliged to appear to defend his appeal, and having succeeded, I think he should have the costs of such defence.

SUPREME COURT.

CAHOON agt. THE BANK OF UTICA.

A cause of action for the recovery of money, can not be joined with one for specific relief, even though they arise out of the same state of facts. Misjoinder and duplicity do not depend upon the fact that two or more causes of action are well stated; all but one may be defectively and insufficiently stated and yet the pleading be double.

(This case agrees with Alger agt. Scoville, 6 How. Pr. R. 131.)

Oswego General Term, May 1851. This action was brought by the assignees of S. W. Brown to compel the bank to pay over a surplus it had received on a mortgage, the property of Brown, pledged by him as collateral security, for notes of Brown & Rossiter, and to require the delivery of the notes to Brown's assignees.

The plaintiffs are general assignees of Stephen W. Brown, who died soon after the assignment and before the action was brought.

Cahoon agt. The Bank of Utica.

Brown in his life time was a mercantile copartner with one Rossiter. This firm was indebted to the Bank of Utica on its promissory notes for three thousand dollars. Brown, one of the firm, deposited with the bank, as collateral security for the payment of the notes at maturity, a mortgage, his own private property, for $3000, and some interest. The firm of Brown & Rossiter was dissolved by Rossiter's death, before the notes fell due. The notes were not paid at maturity, and the bank collected the entire amount of the mortgage, which exceeded that of the notes. This action was brought by Brown's assignees to recover the excess and to require the delivery of the notes to be made available against Rossiter's administrators, in the settlement of the partnership matters.

To the complaint setting forth these facts the defendant demurs, on the ground that the plaintiff can not have judgment for the excess in money, and for the delivery of the notes in the same action.

A. LOOMIS, for Plaintiffs.

WARD HUNT, for Defendants.

m

GRIDLEY, Justice.-It is manifest that this is the union of a demand for money had and received, with a claim which, under the former practice, would have been the foundation of a bill in chancery, to compel the delivery of the notes. The two kinds of relief are prayed for, viz: the payment of the money, and the delivery of the notes.

1. The causes of action require different trials. The money demand is triable by jury, and the equity claim is triable by the court (see § 253 and 254). It is true that by section 253 it is provided that "whenever in an action for money only, or for specific, real or personal property, there shall be an issue of fact, it shall be tried by a jury. Now this last section relates to that kind of personal property which was formerly recovered in replevin and now forms the ground of the actions for the recovery of the possession of personal property, and has no reference to claims in equity; several of its provisions are incompatible with such a case, as for example, the fifth subdivision of section 207. For this reason there is a misjoinder.

Cahoon agt. The Bank of Utica.

2. But the 167th section declares what causes of action may be united, among which are,

1st. Classes of actions arising out of contract express or implied. If a note that is functus officio and paid up can be recovered at all, it is not by action on contract, but the action is one of tort (see Todd vs. Crookshank, 3 Johns. Rep. 432). Again, it is a sufficient objection that there is no contract laid. in the complaint to redeliver the note.

2d. The seventh subdivision, which embraces claims against a trustee by virtue of a contract or by operation of law, is also relied on by plaintiffs. This was intended to provide for claims to enforce trusts, properly so called, and has no reference to such a case as this.

But,

3d. The sixth subdivision embraces claims to recover personal property with or without damages for the withholding thereof. Now if the claim for the redelivery of the notes is embraced within this section, then it certainly excludes the claim for the money demand. The action is peculiar; the issues are different, and the trial, verdict and judgment, are all different in the two The two causes of action can not be united either under the Code or the former practice. Moreover the last clause of this section provides that the causes of action united must all belong to one of these classes. The demurrer is allowed with costs.

cases.

The plaintiffs appealed from this decision, and the Supreme Court at a general term held before Justices PRAtt, Gridley, ALLEN and HUBBARD, affirmed the judgment. The following is the opinion of the court.

By the Court, ALLEN, Justice.-I think the judgment should be affirmed for the reasons stated in the opinion of the judge given upon pronouncing judgment. It may be said in answer to the ground taken by the plaintiffs on the appeal, to wit: that the complaint is not for two distinct causes of action, for the reason that the statement of the plaintiffs' claim in respect to the promissory note does not set forth sufficient facts to constitute a cause of action, so that in truth the only cause of action set forth is upon the money demand; that duplicity does not depend upon the fact that two or more causes of action cr defences are

Ten Broeck agt. Hudson River Rail Road Co.

well stated. All but one may be defectively and insufficiently stated and yet the pleading be double. If the party sets forth and relies upon more than one cause of action or defence, his pleading will be double, and if they can not under the Code be united, his pleading will be bad upon demurrer (Bacon's Abr. Pleas, K.; Kennedy vs. Story, 10 John. R. 289; Mansel on Demurrer, 68; citing id. 176).

SUPREME COURT

TEN BROECK agt. THE HUDSON RIVER RAIL ROAD COMPANY.

Upon an appeal from the decision of a single judge to the general term, no security whatever is required. But if the party appealing desires a stay of proceedings, he must obtain an order for that purpose, or give the security prescribed by the 348th section of the Code (see Dorlon agt. Lewis, ante page 132).

Albany General Term, September 1852-PARKER, WRIGHT and HARRIS, Justices. Security for costs of appeal. Upon the trial of the action at the circuit the plaintiff was non-suited. Judgment for the costs of the action was perfected on the 14th of May 1852. On the 18th of the same month the plaintiff served a notice of appeal, in due form, pursuant to the 327th section of the Code. No undertaking, or other security for costs upon the appeal, was executed. The defendants moved to dismiss the appeal for the want of such security.

R. W. PECKHAM, for Plaintiff.

J. H. REYNOLDS, for Defendants.

66

By the Court, HARRIS, Justice.-The mode of making an appeal is prescribed by the 327th section of the Code. This section is found in that part of the Code which relates to appeals in general," and is applicable to all appeals, in all courts. The 334th section relates exclusively to appeals to the Court of Appeals. It is found in the second chapter of the title relating to VOL. VII

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