33 N.Y.S. 202 | N.Y. Sup. Ct. | 1895
There was a misjoinder of causes of action in the complaint. This the defendant alleged, with other matters in his answer, and at the close of the plaintiff’s evidence made it one of the grounds of motion for nonsuit. The motion was denied by the justice, and judgment was afterwards rendered upon the verdict of the jury for the plaintiff. In justices’ courts, the misjoinder of causes of action is not a ground for demurrer, strictly as such. Code Civ. Proc. § 2939; Lapham v. Rice, 63 Barb. 485. But it is a matter for objection to be taken in due time,, and, if not so taken, is waived. Whitney v. Crim, 1 Hill, 61; Dunham v. Simmons, 3 Hill, 609; Willard v. Bridge, 4 Barb. 361. And when his complaint embraces alleged causes of action, both in tort and on contract, the plaintiff, in case of his recovery, is denied the benefit of execution against the person of the defendant. Code Civ. Proc. § 2937. This was the rule at common law, and the nature of the execution to which a plaintiff may be entitled is dependent upon the character of his complaint. In the present case the plaintiff gave evidence to the effect that the defendant’s sheep and horses entered into the plaintiff’s premises, and injured and partially destroyed his crops of barley and peas. The plaintiff testified that there were no unsettled matters between him and the defendant other than the damages to his crops and to his plow. The matter of the plow, as he testified, was that he lent a plow to the defendant, who promised to return it in good order, and to furnish a new point for it; that he failed to do so; and that the repair of the plow cost 25 cents, and the price of a new point was 60 cents,—thus making only 85 cents as damages for the alleged breach of contract. The misjoinder of -causes of action is not a “defense,” in the sense applicable to that term, and therefore is not the subject of allegation in the answer. The justice may not necessarily be advised of the contents of the pleadings when they are in writing and filed with him, unless his attention is for some purpose particularly called to them.