THE New York Supplement VOLUME 87 AND New York State Reporter, VOLUME 121. SNELL V. CORNWELL. (Supreme Court, Appellate Division, Fourth Department. March 22, 1904.) 1. BAILMENT-LIABILITY OF BAILEE. A bailee for hire of a horse is primarily chargeable with the duty of returning it at the stipulated time, and, not having done so-it having died from an injury received while he had it-he has the burden of showing that such death was not the result of his negligence. Appeal from Jefferson County Court. Action by George Snell against William Cornwell. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ. Lewis H. Ford, for appellant. SPRING, J. This action was commenced in Justice's Court. The plaintiff recovered a verdict which was substantially a victory for the defendant, and an appeal was taken to the County Court, and a new trial had. The plaintiff was the owner of a horse, and hired it out to the defendant to work on the latter's farm for a period of two weeks at 50 cents a day. The horse was not returned, and the plaintiff sued for its value and for the stipulated price. The substantial allegations ¶ 1. See Bailment, vol. 6, Cent. Dig. § 125. 87 N.Y.S.-1 and 121 New York State Reporter of the complaint were admitted by the answer. Upon the trial in County Court the defendant's attorney sought to make the plaintiff elect whether his action was based on negligence, or on the contract of hiring. The County Judge quite insistently urged that the complaint should be amended by inserting a cause of action in negligence. The plaintiff's counsel, appreciating that he already stated a cause of action, was adverse to complying with the request of the court, and it is somewhat uncertain from the record whether the amendment was made. But there was no election required of the plaintiff. The suggested amendment was entirely unnecessary, and the case was properly tried on the part of the plaintiff in accordance with the complaint in the Justice's Court. The defendant was a bailee of the plaintiff for hire, and it was incumbent upon him to return the horse to the plaintiff at the expiration of the stipulated time of service. It appears that the horse died by reason of an injury received while the defendant was using it. If this injury was not the result of negligence or the want of reasonable care by the defendant, then it was incumbent upon the latter to establish this fact. Primarily he was charged with the duty of returning the horse, and he must show excuse for not doing so, and that burden was not upon the plaintiff. As has been stated, the case was tried by the plaintiff upon this theory. There was a fair question of fact decided adversely to the defendant. If either of the pleadings was defective, it was that of the defendant, in failing to allege that the horse was injured and died without his fault; but that question is immaterial, for the case was tried on the merits. The judgment and order should be affirmed, with costs. Judgment and order affirmed, with costs. All concur. POWELL v. HINKLEY et al. (Supreme Court, Appellate Division, Fourth Department. March 22, 1904.) 1. PLEADING-CAUSES OF ACTION-SEPARATE FICIENCY. STATEMENTS-COMPLAINT-SUF On a motion to compel plaintiff to file an amended complaint, separately stating and numbering several causes of action claimed by defendant to be alleged in the complaint, defendant cannot raise the question of the sufficiency of the complaint as stating a single cause of action. 2. SAME CONSTRUCTION OF COMPLAINT. Plaintiff's complaint first described the organization of an accident association then in the hands of the defendant G. as receiver, and alleged the accrual of a claim in plaintiff's behalf against the association on a policy. The complaint then charged the relationship of defendants, including the receiver, as directors, and that, in violation of their duties, they wasted and misappropriated the association funds which came into their hands as directors, by reason of which it became insolvent, and that G. was appointed, and still was, its receiver; that G., as such receiver, had been guilty of extravagance, negligence, and inattention, and had refused to bring an action against other alleged derelict directors on plaintiff's request; and that many other persons were creditors, situated similarly to plaintiff, who might join in the action. Whereupon plaintiff demanded judgment establishing her claim, for an accounting by the directors, and the removal of G. as receiver, and the appointment of a competent person in his stead. Held, that the complaint stated but a single cause of action, and was therefore not subject to a motion to separately state and number. McLennan, P. J., and Williams, J., dissenting. Appeal from Special Term, Erie County. Action by Lydia L. Powell, as a creditor of the United States Mutual Accident Association of New York City, against James W. Hinkley, impleaded with others. From an order denying defendant's motion to compel plaintiff to file an amended complaint specially setting forth and numbering at least three causes of action alleged to be set forth therein, he appeals. Affirmed. Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ. Carl Schurz Petrasch, for appellant. HISCOCK, J. This action was brought by plaintiff as the death beneficiary in a policy or certificate of membership issued by the United States Mutual Accident Association of New York City to one Frank L. Powell. Its main object may be generally stated to be that of compelling various defendants, including appellant, to account for their alleged misconduct and misappropriation of funds while acting as directors of said accident association, and of thereby securing redress and relief for plaintiff and other creditors of said association who are similarly situated. Upon this appeal it is assumed by both counsel that the action is, and may be, instituted under sections 1781 and 1782 of the Code of Civil Procedure. The first section, amongst other things, provides for the maintenance of actions against trustees and directors of a corporation to compel them to account for their official conduct, and to pay to the corporation which they represent, or to its creditors, any money and the value of any property which they have acquired to themselves or lost or wasted by a violation of their duties. The second section provides that, outside of certain exceptions, such an action may be brought by a creditor of the corporation. No argument can well be addressed to us upon this appeal by the learned counsel for the appellant questioning the right of plaintiff, as a creditor, to maintain this action, or the sufficiency and effectiveness of the allegations contained in her complaint to set forth at least one cause of action. This motion is based upon the theory, not that the complaint does not state a cause of action, but that, upon the contrary, it goes to the opposite extreme, and in a single count states at least three causes of action. We therefore do not have before us for present consideration any questions, if such in fact exist, which might arise upon a demurrer with reference to the sufficiency of plaintiff's complaint as stating in her behalf a cause of action. In support of his motion, and in fact by the express terms of his notice, defendant claims that the complaint sets forth three causes of action, as follows: (1) An alleged cause of action at law upon a policy of insurance; (2) a cause of action against the defendant directors for misappropriating and diverting the profits of the accident association; |