122 Misc. 145 | N.Y. Sup. Ct. | 1923
The complaint in substance alleges that the plaintiff is the lessee of the premises known as 405 Lexington avenue, extending along the easterly side of said avenue from Forty-second to Forty-third streets, for a term the balance of which exceeds thirty-five years; that on the 16th day of July, 1914, and prior to the commission of the acts of the defendants alleged
The demurrers are based upon the ground that causes of action have been improperly united in the complaint as follows:
1. (a) A cause of action on contract against Rapid Transit Subway Construction Company (b) with a cause of action in tort against the defendant New York Central and Hudson River Railroad Company.
2. (a) A cause of action in tort against Rapid Transit Subway Construction Company arising out of its work under the contract of July 16, 1914, with the city of New York (b) with a cause of action in tort against New York Central and Hudson River Railroad Company arising out of its work under a distinct and separate contract with the city of New York, dated January 25, 1915.
3. (a) A cause of action on contract against Rapid Transit Subway Construction Company under its contract with the city of New York, dated July 16, 1914, (b) with a cause of action on contract against New York Central and Hudson River Railroad Company under a distinct and separate contract with the city of New York, dated January 25, 1915.
4. That all of the separate causes of action do not affect all
5. A cause of action against the defendant Rapid Transit Subway Construction Company for trespass with a cause of action against the defendant New York Central and Hudson River Railroad Company for trespass.
It is claimed by the defendants that because the action was brought prior to the enactment of the Civil Practice Act this motion must be determined under the provisions of the Code of Civil Procedure. While the issues of law were raised under the provisions of the Code, I am of the opinion that the provisions of the Civil Practice Act, later referred to herein, may, and should, be applied. Civ. Prac. Act, § 1569.
The plaintiff contends that its complaint sounds only in tort. With this contention I agree. The fact that liability for the alleged tortious acts is sought to be fastened upon these defendants by reason of provisions in the contracts between them and the city (Smyth v. City of N. Y., 203 N. Y. 106; Rigney v. N. Y. C. & H. R. R. R. Co., 217 id. 31; Seaver v. Ransom, 224 id. 233; Schnaier v. Bradley Contracting Co., 181 App. Div. 538) does not change the character of the action. The gravamen of the complaint is the tortious conduct of the defendants. The action is no more an action in contract than is an action at common law for negligence between employee and employer where the latter is held liable by reason of the contractual relationship existing between them. The demurrers, in so far as they assert that causes of action in tort are improperly united with those in contract, must be overruled.
I am of opinion, however, that there are two separate and distinct causes of action in tort set forth under the reasoning of Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436, 440. The allegations in the complaint as to damages caused “ by blasting * * * in the work of construction ” are necessarily predicated upon negligence, while those relating to actual intrusion upon the plaintiff’s premises sound in trespass. Page v. Dempsey, 184 N. Y. 245, 251, 252. Such causes, however, are properly united in one complaint (Civ. Prac. Act, § 258, subd. 4) and they are clearly not inconsistent with each other. The complaint is subject, therefore, to a motion under rule 90 of the Rules of Civil Practice.
The further grounds of the demurrers that causes of action in tort which arise out of separate contracts between the defendants
The demurrers are, therefore, overruled but with leave to the defendants to plead or move within twenty days upon payment of ten dollars costs each.
Ordered accordingly.
