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310

Fourth Opinion of Mr. Justice Taylor

а

tiff by the said foster parents constituted performance of the relevant term of their said alleged contract with plaintiff's natural parents, which the former were bound to, and did perform by such adoption proceedings, thus instituted and consummated.

The extreme pressure of other judicial business and the rights of other litigants make it impossible for me to extend my views in relation to this complaint under attack as indicated, in

manner consistent with the learned briefs

which have been submitted on both sides. I mere311

ly announce my determination, the result of care. ful study of the complaint and the relevant law of the State; with brief supporting comment.

I decide (a) that but one cause of action is pleaded in the complaint, namely, for the specific performance of the alleged contract which in one of its terms made it incumbent upon the foster parents to adopt plaintiff (meaning lawfully) as their child, which lawful adoption, according to plaintiff, was accomplished by the foster parents in the proceedings in Schenectady County on April 25th, 1899; (b) that the relief sought

by plaintiff in a declaration by this court that 312 such adoption proceedings were valid; and, for

an injunction to halt the probate of heirship proceedings in the Surrogate's Court of Dutchess County, is only incidental, in the situation disclosed in the complaint, to plaintiff's single cause of action for specific performance, as aforesaid.

Even though the plaintiff herein might have elected in separate actions to ask the several forms of relief prayed for in this one, she is Stipulation Waiving Certification

313

within her rights in including her whole claim in one cause of action (Lewis v. Howe, 64 App. Div. 44; 71 N. Y. Supp. 704, citing Richards v. Kinsley, 15 St. Repr. 701, and other cases). My determination, as above, that but one cause of action is stated, finds support in principle in Robinson V. Brown, 166 N. Y. 159; Whalen v. Strong, 230 App. Div. 617.

The defendants' motion for an order directing the plaintiff to separately state and number causes of action is denied, with $10 costs to the plaintiff to abide the event of the action. Settle order before me at Poughkeepsie on notice. Dated, June 6th, 1932.

(Sd.) GEO. H. TAYLOR, JR., Justice New York Supreme Court.

314

Stipulation Waiving Certification.

Pursuant to Section 170 of the Civil Practice Act it is hereby stipulated that the papers as hereinbefore printed consist of true and correct copies of the notice of appeal, the order appealed from and all the papers upon which the court 315 below acted in making the order appealed from, and the whole thereof, now on file in the office of the Clerk of Dutchess County. Certification thereof pursuant to Section 616 of the Civil Practice Act is hereby waived. Dated, October 8th, 1932.

JOHN E. MACK, RAYMOND E. ALDRICH
and Paul Rosen, Esqs.,
Attorneys for Graham and Bock, the

Defendants-Appellants.
WILLIAM A. MULVEY, Esq.,

Attorney for Plaintiff-Respondent.

Argued by Joseph A. McCabe.

SUPREME COURT

APPELLATE DIVISION-SECOND DEPARTMENT,

ISOBEL S. CARTER,

Plaintiff-Respondent,

vs.

ELVIRA S. GRAHAM, JULIA S.

Воск,

Defendants-Appellants,
JOHN K. SAGUE, HELEN N.

SAGUE, MARY LANDON SAGUE,
S. WHITNEY LANDON, Jr., and
E. STERLING CARTER, as Ad-
ministrators of the estate of
James E. Sague, deceased,

Defendants.

BRIEF OF DEFENDANTS-APPELLANTS.

Appeal by the defendants, Elvira S. Graham and Julia S. Bock from an order made by Mr. Justice George H. Taylor, Jr., on June 11th, 1932, which order by its terms denies a motion to compel the plaintiff to serve an amended complaint wherein she shall separately state and number the facts constituting each cause of action.

POINT I.

The motion should have been granted as the complaint contains more than one cause of action.

The defendants, Elvira S. Graham and Julia S. Bock, by a notice of motion dated May 9th, 1932 (fol. 13), moved under Rule 90 of the Rules of Civil Practice for an order requiring the plaintiff to serve an amended complaint só as to separately state and number the facts constituting each cause of action set forth in the complaint.

Mr. Justice Taylor, before whom the motion was argued, wrote an opinion (fol. 304) holding that only one cause of action was pleaded in the complaint and thereupon signed an order (fol. 4) under date of June 11th, 1932, denying the motion. From this order the defendants, Elvira S. Graham and Julia S. Bock now appeal (fol. 1).

The Complaint.

As appears from the complaint (fol. 22) the plaintiff claims that she is the duly adopted daughter of James E. Sague, deceased, and as such she sues the sisters, brother, widow and administrators of the decedent for the purpose of obtaining an adjudication as to the validity and legality of her so-called adoption proceedings. If this be denied her she asks by way of alternative relief that specific performance be decreed of an alleged contract made between the plaintiff's natural parents and her foster

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