Hall v. Fisher, 20 Barb. 441

Hall v. Fisher

20 Barb. 441 | N.Y. Sup. Ct. | 1855

By the Court, C. L. Allen, J.

I am inclined to think there is an improper joinder of claims, by attempting to unite the rights of the plaintiff personally with those in his representative character as administrator of Ephraim Hall. The two Halls, as charged in the complaint, were tenants in common owning one quarter, with the defendants’ testator, who owned three-fourths, of the lot and the ore bed. The claim is that the defendants account to the plaintiff in person and as such administrator, for their share of the rents and profits, avails and income of the ore bed, rights and privileges while their testator held the exclusive possession thereof, and for their share of the ore dug and raised by said Henry from the land during that time, and for their share af the moneys had and received, including what said Henry ought to have received for the use, rents and profits of the improvements, buildings, fixtures and erections of the said Halls, and for the wear and damage of the same, and for the injury and obstructions to the use of said ore bed, and for the ore so dug and raised by the Halls between the 1st of May, 1845, and the issuing and service of the injunction, and for the debts which the Halls lost, and for all and singular the loss, damage and injury which the said Halls sustained by occasion of the premises, of every nature soever. The amount due to each tenant in common from his co-tenant, is a several debt to himself alone, (4 Paige, 363,) and not to the tenants or a portion of them jointly. The rights and claims attempted to be united are inconsistent and adverse. (Alston v. Jones, 3 Barb. Ch. R. 397.) But the plaintiff alleges that this is an *447action for an accounting, and that all parties interested should be made parties to the suit, so that there need to be but one accounting. If this be so, then the causes of action or claims should be separately stated. How else can the defendant, if he has a defense, of a different character against each co-tenant, avail himself of such defenses 7 He might in this case have one defense against the plaintiff as to his personal claim, and another defense as to the intestate whose rights he claims to represent as administrator. The statement of the causes should have been separate and distinct. (Code, § 167, sub. 7. 4How. 226. 5 id. 171, 177. 8 id. 177. Brady & Ellsworth v. Lockwood, MS.)

But however this may be, I am of opinion that several causes of action have been improperly united in the complaint. The plaintiff claims that the action is for an accounting, against a co-tenant in common, for receiving more than his proportion of the common property. But it is more. The complaint, after setting out the title of the plaintiff and his intestate to one quarter of lot 42 and the ore bed thereon, and showing large and valuable erections and fixtures made by the Halls for their benefit and to enable them .to enjoy and work the property, avers that on or about the 12th day of June, 1848, the said Henry Fisher, contriving and intending to injure and defraud the said Halls, and falsely pretending that the said Halls were not the owners of a quarter part of said ore and lot, but that he was sole owner thereof, procured an injunction in the manner stated in the complaint, and by means of its service occasioned all the damages which the plaintiff alleges were sustained. This is not matter of account, and no bill in equity or an action under 1 R. S. 750, § 9, could be sustained upon it. The falsely and fraudulently obtaining this process, and the consequences arising out of its service, seem to form the principal part of the complaint. They are the gravamen of the action. The action of account should be founded upon a relation in the nature of a trust. (3 Hill, 60.) The bond required to be given, and which was given at the time of obtaining the injunction, afforded, as it was designed to do, an ample remedy for these damages, and to *448an action upon that the plaintiff should have resorted. If this were to be called partly an action for a malicious prosecution— and it would seem to be so, from the nature of the complaint— then it. would not lie until the final termination of the suit. The complaint does not allege that the suit has terminated, but only that the injunction was dissolved. It should allege want of probable cause, by averring that the suit was finally determined in favor of the defendant therein. A claim founded in tort is also united in the complaint, for diverting to his own use by the said Henry Fisher 1000 tons of ore dug and raised by the Halls before the service of the injunction.

Another claim is for trespass on houses, erections and fixtures which the Halls erected at an expense of $5000, before the service of the injunction, and the claim for their share of this expense is also added. It is not averred on what land, or where, these erections were made; but the defendant’s intestate is charged with wrongfully taking possession of, and using and injuring them by his carelessness and negligence, as well as the ore bed.

The plaintiff also claims that said Henry Fisher received $20,000 profits, and might with proper management have received $20,000 more. Now a tenant in common is not liable for negligence or misuse of the common property, nor for what he might have made by diligence, unless appointed bailiff, &c. (Henderson v. Eason, 9 Eng. Law and Eq. Rep. 337.)

It is said by the plaintiff’s counsel that there is but one cause of action, and that all the claims are but parts of one and the same establishment, and incidents of the tenancy in common and of the mining business. *But all these are promiscuously stated and jumbled together, and they do not all belong to one of the classes mentioned in the several subdivisions of section 167. It may be questionable, since the decision in Tripp v. Riley, (15 Barb. 333,) whether Henry Fisher could be chargeable and liable to account in this action, unless it was averred and shown that he had received more than his share (three-fourths) of the ore bed. But it is not necessary to pass upon that point, here.

Without further examination I can only say that I fully con*449cur-with the learned justice who delivered the opinion at special term, and in the views there expressed. The order must be affirmed, with $10 costs.

[Washington General Term, January 1, 1855.

Hand, Cady, C. L. Allen and James, Justices.]