3

4

5

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Nichols v. Drew, 94 N. Y., 22.

That before such assignment Drew and Young represented to plaintiff that there was a sum of $250 belonging to them in the hands of third persons which they verbally assigned to plaintiff, to be received by him in addition to the 25 cents on the dollar of his claim against them.

That they requested him to sue such third persons, and he did so and failed and was compelled to pay costs and expenses, because whatever moneys had been in their hands had been paid out under the direction of Drew, McLane and Young.

That plaintiff's claim to the sum of $250 he did not assign to Churchill, but it was reserved to him as an additional inducement to assign his claim against the other defendants. That said sum had never been received by plaintiff; and Drew, Young and McLane were now indebted to him therefor.

WHEREFORE, plaintiff demanded judgment for the amount of the claim he had assigned, less the 25 per cent paid by Churchill; for the costs and disbursements of his suit; that the assignment be adjudged void; and also for damages against Drew and Churchill for fraud and deceit.

The defendant Drew demurred to the complaint on the grounds (among others):

"That several causes of action have been improperly united in said complaint, viz.: That the first count or claim in said complaint being founded in fraud and based on allegations of fraud and being in the nature of a tort or wrong, and the second count or claim being upon contract, the two are inconsistent with each other."

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that said second cause of action, count or claim so set forth in said complaint does not affect all of the parties to the said action, viz.: the said defendant Churchill.

The Supreme Court at Special Term overruled the demurrer, holding that (as to the objection that causes of action for tort and on contract were improperly united), the first cause of action was not for a tort, but to set aside an agreement on the ground of fraud; that the second cause of action was on an alleged contract, and that legal and equitable causes may be joined in the same action; and (as to the objection that the

Nichols v. Drew, 94 N. Y., 22.

second cause of action did not affect the defendant Churchill), 7 the defendant Drew, the demurrant, cannot take this objection.

The General Term reversed the decision of the court below, and sustained the demurrer, on the ground that, while taking the most favorable view for the plaintiff of the first causes of action and assuming that it is for the recovery of the amount unpaid upon the contract and that the remainder of the count is framed with a view of setting aside an impediment in the way of obtaining that relief, yet in the first count the defendant Drew is sought to be charged as a joint contractor with the 8 defendants Young and McLane, and in the second count as a joint contractor with Young alone. The two contracts not being made by the same parties, cannot be sued on in one action. (Reported in 19 Hun, 490.)

The General Term granted a motion by plaintiff for re-argument on the ground that the attention of the court not having been called to Code Civ. Pro., § 490, defining the grounds of demurrer, the question whether the specifications in the demurrer were insufficient to raise the point upon which the case 9 was decided, was overlooked. (Reported in 21 Hun, 109.)

The General Term on the re-argument adhered to their decision reversing the judgment and order of Special Term, and ordered judgment for defendant Drew, on the demurrer, with costs of the demurrer and the appeal, with leave to the plaintiff to amend his complaint in twenty days on payment of costs, holding that there was an improper joinder of causes of action, the first count being in tort and the second on contract, and the defect being specified in the demurrer.

The Court of Appeals affirmed the judgment.

FINCH, J. The demurrer interposed took the specific objection that the first cause of action pleaded was in tort, while the second was on contract, and so there was a misjoinder of causes of action. The General Term sustained the objection. It is now claimed that both counts were on contract, and the first is construed to allege a debt against Drew, McLane and Young, which is sought to be recovered, while Churchill is introduced as a

· 10

Nichols v. Drew, 94 N. Y., 22.

11 party, and his and Drew's fraud alleged, solely to set aside the assignment to Churchill, and restore the plaintiff to the position of a creditor of the firm. But the pleading plainly avers a fraud perpetrated by Drew and Churchill, whereby the plaintiff suffered damage to the amount of seventy-five per cent. of his debt. The loss of the debt as damages suffered, and not its recovery upon the contract, is the substance of the pleading.

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But if this were doubtful, and the first cause of action could be deemed ex contractu, and aimed solely at a recovery of the debt, a difficulty remains. An objection was stated in the de

murrer that the second cause of action did not affect the defendant Churchill. Although it repeats the allegations of the first count, it goes on to show, and does clearly show, that Churchill was in no manner affected by it; for it avers that the moneys said to be in the hands of Saunders were not included in the assignment to Churchill, but reserved therefrom, and that the false statement of moneys in the hands of Saunders, and their assignment to plaintiff was before the latter's assignment to Churchill. Now the only pretense for making Churchill a 13 party, upon the theory that both causes of action are on contract, is to set aside the assignment to him. But the Saunders money, or so much of the debt of the firm as that represented, is distinctly averred not to have been assigned to him, so that, taking as true, as we are bound to do, the allegations of the complaint, it distinctly appears that to the second cause of action Churchill was an entire stranger, and in no manner affected by it. The Code provides (484) for the joinder of causes of action, naming in nine subdivisions those which may be united, but applying further to those in each class the limitations that they must be consistent with each other, and, except as provided by law, must affect all the parties. The exception mainly relates to mortgage foreclosures, as to which special provisions exist. The answer made to this difficulty is that no demurrer lies for making too many parties, and for such excess the party against whom a good cause of action is pleaded cannot demur. But the objection is not for a misjoinder of parties. It is for a misjoinder of causes of action. Those arising on contract and affecting all the parties may be joined. Those arising on contract, but inconsistent with

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Nichols v. Drew, 94 N. Y., 22.

each other, or not affecting all the parties, cannot be joined, and 15 the defect may be reached by demurrer. The General Term was, therefore, right in its conclusion.

We are at liberty to allow the plaintiff to plead anew or amend upon such terms as are just, or if need be, to direct a severance of the action. (Code, § 497.) No necessity for such severance is suggested, but it seems proper to allow the plaintiff to amend upon terms which are just.

The judgment of the General Term should be affirmed, with leave to the plaintiff to serve an amended complaint within twenty days from notice of the entry of this judgment, upon payment, within the same time, of costs from the service of the demurrer, including those on appeal to the General Term and to this court.

All concurred.

Judgment accordingly.

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1

Victory Webb Printing Co. v. Beecher, 26 Hun, 48.

VICTORY WEBB PRINTING, ETC., CO. v. BEECHER.

New York Supreme Court, First Department, 1881.

[Reported in 26 Hun, 48; aff'd in 97 N. Y., 651.]

1. Where a complaint contains separate statements of several supposed causes of action, each must be complete and sufficient in itself. A general statement after the end of the last cause of action of a fact essential to make each of them sufficient, but in no wise expressly referred to in any of them, does not avail to aid any of them.

2. Each such incomplete cause of action is bad on a demurrer thereto. 3. A demurrer to the whole of a complaint as a whole is not sustainable if it contains more than one cause of action, and any one is good.

Action against trustees of a manufacturing company to recover on their individual liability for a claim against the company, because of the alleged failure of the trustees to make and file an annual report.

The complaint contained, in form, seven distinct counts, or causes of action, expressly stated to be separate causes of action; but each of several alleged as its foundation the violation of one and the same contract made by the said company, and only set forth some special item of damage consequent upon such breach.

A general clause, introduced at the end of the last count, and in express terms made applicable to all of them, set out a default made by the trustees in filing the required statement, and that they became thereby personally responsible for the debts of the company before mentioned.

The first count or cause of action stated a contract for the construction of a machine, for which the price was due. The second was for the wages of a superintendent sent to put it up.

The third for freight advanced in sending it.

Others were for duties, for cartage, for storage after refusal to accept it, and for insurance paid.

After the seventh of these statements of supposed causes of action the complaint contained a paragraph alleging that the defendants were trustees of the company during a specified period, and neglected, etc., to make and file an annual report as