126 N.Y.S. 301 | N.Y. App. Div. | 1910
Appeal from order granting plaintiff’s motion for judgment on the pleadings which consist of a complaint and a demurrer for general insufficiency and for duplicity in that a separate and distinct cause of action against each of two defendants has been alleged. The complaint is a most curious document. It alleges that on a certain date the plaintiff was .standing upon the sidewalk at the-corner of Grand and Christie streets in the city of New York. It then alleges in numerous numbered paragraphs that the defendant Schwarzschild & Sulzberger Company owned, operated and controlled a certain truck and the horses attached-thereto, and that the said horses and truck were in the possession of and under the control of the servant, agent or employee of said company who was then driving the same, and that said-company, its agent, sérvant or employee so carelessly drove and managed said horses and truck or vehicle that by reason of its negligence said, wagon struck the plaintiff with great .violence.- Intermingled with these allegations undertaking to state a cause of action against the Schwarzschild & Sulzberger Company, are precisely similar allegations respecting one Nicholas J. Schnep.p and undertaking to state a like cause of action against him. The motion appears to have-been granted upon the ground that the complaint alleges the joint negligence of both defendants, but we cannot so read it. There is no single allegation which serves to link the defendants together as joint tort feasors.It may be read as alleging that the plaintiff was struck by two trucks owned by different persons. Or what is more probable, the plaintiff was struck by only one truck, but is uncertain to whom it
The motion for judgment should have been denied. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.
