4 How. Pr. 226 | N.Y. Sup. Ct. | 1849
The plaintiffs have united in the same complaint three substantive grounds of injury, viz.: one for the building an embankment on the defendants’ own land, one for building an embankment on the highway near the plaintiffs’ store, and a third for erecting an embankment on the plaintiffs’ land. These injuries are not separately stated but blended together, and the defendants have demurred for that cause.
Among these rules for the joinder of actions are the following, viz.: “ that the causes so united must all belong to one only of these classes,” &c., “ and must be separately stated." The causes united in this complaint all belong to one class, to wit, number three, but they are not separately stated. This is made a distinct cause of demurrer, by § 144, sub. 5, of the Code of Procedure.
The 150th and 151st sections throw some light on this question. By those sections, the defendant is allowed to set forth by answer as many defences as he shall have. They must be separately stated, and refer to the causes of action which they are intended to answer. The defendant is allowed to demur to one or more of the several causes of action stated in the complaint, and answer the residue. Prom these provisions, in connection with the foregoing, it is obvious that the code intended that each cause of action should be embraced in a single count in the complaint, and that there should be as many counts as there are causes of action. Had the old phraseology, with which the profession was familiar, been retained, fewer mistakes would have been made in this respect. The requirement, that the several causes of action must be separately stated in the complaint, is precisely equivalent to the requirement of a distinct count in a declaration for each cause of action. Without such separation, the defendant cannot have the benefit of a separate answer or demurrer.
The plaintiff’s counsel denies that there is more than one cause of action set up in the complaint. They insist that the allegation that the defendants built the embankment on their own land, on the highway or turnpike, and on the plaintiff’s land, is merely descriptive of its locality, and that the gravamen of the action is the consequential injury. If this were so, there would be a good ground of demurrer before the code for a misjoinder, because the statute, (2 R. S. 553, § 16,) allowing case to be brought instead of trespass, does not apply to injuries to the freehold. (See 10 Wend. 324.) For those, the remedy was left as at common law. If, then, here is a misjoinder at common law, it is because trespass and case were united in the same declaration, contrary to well-settled practice. (1 Ch. Pl. 197; 2 Saund. 117, c. e.) If trespass and case could not be united in the same declaration, before the code, though in different counts, they cannot be united in the same action now, unless they are separately stated,, that is, set forth in different counts.
If the complaint had conceded that the embankment was rightfully built, and had claimed damages only for the unskilful or improper manner of its construction, the jury would not be warranted in giving damages for the entry on the plaintiff’s lot. But the complaint states that it was wrongfully built, as well on the plaintiff’s as on the defendants’ lot. Thus it opens the case for proof of damages for the unlawful entry on the plaintiff’s land, as well as for the consequential injury resulting from its erection on the defendants’ own land and on the turnpike.
The second ground of demurrer is that the complaint does not contain facts enough to constitute a cause of action We are here met, in the threshold, with the objection that the demurrer does not distinctly specify the grounds of objection to the complaint, as required by § 145, There is an intimation by Sill, J., in Glenny v. Hitchins, 4 How, Pr.
The objection to the complaint is that it does not appear how an embankment on the turnpike road can inj ure the plaintiffs. It is not shown that the turnpike road was the necessary way to the plaintiffs’ lot and store. It is stated, indeed, that the turnpike road is in front of the store, but whether a hundred rods in front or immediately adjacent, is not shown. Nor is it shown how the erection of an embankment on the defendants’ own land, can be unlawful; or how it can injure the plaintiffs’ business. The complaint takes for granted that the defendants are a corporation, and that they have a rail road, and the court is bound to take notice of the act of incorporation. The act, § 13, (L. of 1834, p. 442,) authorizes the defendants to cross any public highway, they restoring it in a sufficient manner not to impair its usefulness. The act thus legalizes the crossing the highway so far as the public is concerned, but does not exempt the defendant from the consequential injury resulting to others. But that
The defendants are entitled to judgment on the demurrer for the reasons before stated, with leave for the plaintiffs to amend their complaint; as the defect in this case arose out of a misapplication of the principles of the code to the former mode of pleading, and as the plaintiffs may have been prevented from amending when the demurrer was served, in consequence of the dictum in. Glenny v. Hitchins, supra, that the demurrer was void for its generality, I shall allow the plaintiffs to amend without costs.
Judgment for the defendants on the demurrer to the complaint, with leave to amend without costs.