9 N.Y.S. 260 | N.Y. Sup. Ct. | 1890
The infant plaintiffs, by their guardian, Mary E. Hynes, and
that lady individually, brought this action to recover damages sustained by the wrongful conduct of the defendant. The infants are the heirs at law of William R. Hynes, and Mary B. is his widow. It became desirable, if not necessary, to sell a part of the realty, and in proper form, and to the proper tribunal application'was made for leave to do so, which was granted. The defendant was in the proceeding appointed a special guardian to take care of the interest of the infants, but it is charged that, by appeals wrongfully taken and delays wrongfully interposed, the defendant, disregarding its duties, and contriving and intending to injure the infants and the widow, so conducted the proceeding that the advantageous market for a sale passed away, and the property, in consequence of these acts, was so prejudiced and sacrificed that when sold it brought less than about 60 per cent of its value, subjecting the plaintiffs to the expense and loss of $100,000, for treble which amount dam
The learned justice at special term sustained the demurrer, expressing his views in an elaborate and conclusive opinion. It may not be necessary, therefore, to add aught to it, but some suggestions may "be made. The misjoinder is quite apparent from the fact that the rights of the infants and the widow are entirely different. The heirs are owners of the fee, and equally entitled to the advantages of the sale,—the widow only to so much of them as corresponds with or is proportionate to the value of her dower right. Her interest, therefore, is not in the fee, but its product, and must be judged and estimated by different legal elements, and therefore must be presented for consideration separately. Different causes of action may be joined if they are such as may be enforced by all of the plaintiffs, but separate claims cannot be united by several plaintiffs, although kindred and dependent upon similar facts. Gray v. Rothschild, 112 N. Y. 668, 19 N. E. Rep. 847. The case of Nichols v. Drew, 94 N. Y. 22, affords no aid to the plaintiff on this subject. The objection there was to a misjoinder of the causes of action. The Code, it is true, by section 446, provides that “all persons having an interest in the subject of the action, and obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act.” But this does not embrace all actions for damages dependent upon different interests, and was not intended to produce such confusion; hence the exception in the section. In an action for partition, for illustration, where many may have an interest in the subject of the action, they may be joined. In an action for damages only, there is no subject of the action eo nomine, as contradistinguished from the cause of action. The interest is not in any subject, but in the result. It is not to enforce any claim to specific property, real or personal, or to set aside a will, or any written instrument, or in relation to a nuisance or to recover the possession of any tang,ule thing, or to secure its appropriation, but merely for such compensation as may be awarded for injuries received,—for something'not in esse, but to be created by the verdict, if one be rendered in favor of the plaintiff. See Brinkerhoff v. Brown, 6 Johns. Ch. 139; Reed v. Stryker, 12 Abb. Pr. 47; Peck v. Elder, 3 Sandf. 126. The subjects thus indicated for the union of several plaintiffs may be said to be exceptions to the general rule. As a general principle, several plaintiffs, having distinct and independent claims against a defendant, cannot join in a suit for the separate relief of each. Murray v. Hay, 1 Barb. Ch. 59; Wood v. Perry, 1 Barb. 114. It is unnecessary, however, to pursue this subject further. The judgment appealed from, for these reasons and those given by Justice Lawrence, should be affirmed, with costs. All concur.
