15 Abb. Pr. 122 | N.Y. Sup. Ct. | 1862
This is an appeal from an order overruling a demurrer to the complaint.
I. The first objection to the complaint is that the renewal-lease, having been accepted by the plaintiff, constitutes a satisfaction of all the covenants of the original lease.
The objection is not well taken. The renewal-lease satisfies only the covenant to renew. It is no satisfaction of the other covenants.
II. The second objection relates to the liability of Vreeland as executor of Gautier, and individually. The demurrer assumes that the complaint contains two causes of action. In this I think the defendant is mistaken.
Some of the subsequent objections also assume the same ground.
There is but one injury, and but one satisfaction is sought by the complaint.
The pleader has unnecessarily stated the covenants in the renewed lease and the breach of them, as well as the covenants of the original lease and their breach, and has claimed to recover damages by reason of certain covenants in each of these leases, which are alike.
A statement of the covenants of the two leases, and of their breach, is consolidated in the complaint, as if the two constituted a single cause of action. The complaint does not purport to state two causes of action separately.
A reference' to the renewed lease was necessary only so far as to show that the plaintiff was in lawful possession, as against
But this reference gave no occasion for stating the covenants of. the renewed lease, or what breaches of them had occurred.
The defendant is light in asserting that, in an action for breaches of the covenants of the renewed lease, the proper parties-defendant are not before the court, inasmuch as there are others who executed that lease jointly with the defendant, but are not made parties here.
There are, however, sufficient parties, and all the proper parties, before the court here, in an action founded on the original lease.
As an action on the renewed lease, it would fail altogether, without the addition of other parties, while, as an action on the original lease, there is no want of parties-defendant.
It must be held on demurrer, where facts are stated in a complaint, showing that the plaintiff has two contracts which are broken, so that an action might be maintained on either, but are not stated separately, as several causes of action, that the action is founded on that contract upon which it can he sustained as to some or all of the defendants, and not upon that contract where the action must fail unless new parties are brought in. The allegations showing a cause of action in such case, which cannot be sustained for want of proper parties-defendant, must be treated as irrelevant or immaterial, and upon motion should be stricken out.
For these reasons, as well as that the intent of the pleader is manifest to pursue the representatives of the original lessor, Eliza Lewis, deceased, it must be held that this action is brought to recover for the breach of certain covenants contained in the original lease.
The arguments in favor of a contrary decision are drawn from the inartificial, redundant, and irrelevant matter contained in the complaint, considered as an action on the original lease only. Such defects in pleadings are reached by a motion to expunge or strike out, but are not the ground of a demurrer.
His liability as executor of Eliza Lewis has not been disputed. It will be necessary to consider only his liability, or the propriety of his joinder here, as a party-defendant, as executor of Daniel W. Gautier, deceased, and in his individual capacity.
1st. As to the liability of Yreeland in his individual capacity.
The allegations of the complaint are not entirely harmonious as to the manner by which the real estate devised by Eliza Lewis to Gautier came from him to Yreeland. It is averred in one part of the complaint that Gautier conveyed to John Leveridge all the real estate devised to him by Eliza Lewis in trust to convey it to Yreeland upon the death of Gautier, and that Leveridge, in pursuance of the trust, conveyed it to Yreeland. Subsequently it is alleged that the specific property devised by Eliza Lewis to Gautier was by him devised to Yreeland, and that Yreeland received it.
In either case it came to Yreeland as a gift from Gautier, without the payment of any consideration, and involves the same equitable liability to satisfy, to the extent of the property or estate so received, the damages arising from the breach of the covenants of Eliza Lewis, deceased.
2d. As to the liability of Yreeland as the executor of Gautier, deceased.
It is averred that a large amount'of personal estate came to the hands of Yreeland as the executor of Eliza Lewis, deceased, and still remains in his hands.
The personal estate was bequeathed by her to Daniel W. Gautier, deceased. His executor would be entitled to take after the estate of Eliza Lewis was settled. The executor of Gautier is properly a party to conclude any claim hereafter to the estate of Eliza Lewis, deceased, in the hands of her executor, on behalf of Gautier’s representatives. He is a necessary party in the settlement of the rights of the various claimants of the fund, and also to reach any personal estate received by his executor, from the estate of Eliza Lewis, deceased, or to which the executor of Gautier is now entitled.
This amounts to a demurrer only to a portion or paragraph in a cause of action set forth in the complaint.
A demurrer- must reach the whole of a cause of action. A paragraph cannot be expunged on demurrer unless it amounts to a separate cause of action, and is so stated.
The third ground of demurrer relates to the averments respecting the renewed lease, supposed to be a second cause of action, and the omission of several of the joint covenantors therein as par ties-defendant, and to the improper joinder of an action on the renewed lease with an action on the original one.'
These grounds, as has been before shown, depend on the mistaken assumption that more than one cause of action is stated in the complaint, and require no further comment.
The only remaining cause of demurrer .relates to all other causes of action in the complaint besides those founded on the-two leases.
This can hardly be considered as a general demurrer for the want of facts sufficient to constitute a cause of action. There is no cause of action in the complaint except such as arises from the lease or leases.
Considered as a general demurrer, there are sufficient allegations to show a breach of the covenant that the renewal-lease should be executed by the parties lawfully entitled, and of that providing against a compulsory surrender of the premises until payment has been made or tendered for the building erected by the lessee. Under the circumstances of the eviction averred in the complaint, the presumption of non-payment or tender is in favor of the plaintiff.
The order appealed from should be affirmed, with costs, with liberty to the defendants within twenty days to answer upon payment of the costs of the demurrer, and of this appeal, to be adjusted by the clerk.
Judgment accordingly
Present, Ingraham, P. J., Leonard and Rosecrans, JJ.