11 Daly 114 | New York Court of Common Pleas | 1882
This appeal is from a judgment entered upon a decision .sustaining the demurrers of certain defendants to the complaint, upon the ground, among others, of improperly uniting causes of action.
The causes of action united in this pleading—the one for fraud affecting the assignment and chattel mortgages, the other against Close, the owner of a valid incumbrance—do not affect all the parties to the action, and consequently are not capable of joinder (Code Civ. Pro. § 484). It is not an answer to the objection, that no cause of action is stated against Close. The pleader has assumed to allege one, and cannot claim failure for a shield, when the pleading is thus questioned by other defendants. Whether or not a cause of action is set forth against Close, depends upon adjudication by the court. Until so decided its averment must be deemed sufficient.
The judgment should be affirmed, with costs.
Charles P. Daly, Ch. J., and Van Brunt, J., concurred.
Judgment affirmed, with costs.