McKenzie v. Hatton, 29 N.Y.S. 18

McKenzie v. Hatton

29 N.Y.S. 18 | New York Court of Common Pleas | 1894

PRYOR, J.

By the terms of the Code (section 484) it is indispensable to the union of several causes of action in the same complaint—First, that they be of a certain class; secondly, that they be consistent with each other; thirdly, that they affect all the parties; and, fourthly, that they do not require different places of trial. Consisting only of a single count, still the complaint contains the elements of four different causes of action ,■—two against Golden-berg and the Larkins, and two against Hatton. The causes of action, against Goldenberg and the Larkins are—First, that, having a license to enter upon plaintiffs’ premises, these defendants neglected duly to shore up and protect them; and, secondly, that, having, no license, they wrongfully and unlawfully entered upon the premises. The causes of action against Hatton are—First, that he wrongfully refused a license to the other defendants; and, secondly, that he prevented the other defendants from shoring up and protecting the premises. Conceding, for argument, that these four *20causes of action comply with the other- requirements of the Code in order to their union in a single complaint, it is manifest that each does not affect all the defendants. For instance, the cause of action against Goldenberg and the Larkins for an unlawful entry upon the premises was not the legal effect of Hatton’s refusal of a license, but their own voluntary and independent tort. Hatton’s refusal, of the license, so far from being an invitation, was a prohibition, of the entry. For this trespass, therefore, Hatton is plainly not responsible. So, Hatton’s refusal of the license was his own individual act, with which it is not suggested in the complaint that the other defendants had any connection or privity; the contrary, rather. Hence, the other defendants are plainly irresponsible for Hatton’s wrong in refusing the license. Again, Hatton’s hindrance of the other defendants in protecting the premises was, by the very terms of the proposition, against their will; was a wrong in which they did not concur, and to which they did not assent; was a wrong, therefore, for which, obviously, they are not answerable. The two substantive wrongs upon which the action proceeds are the refusal of Hatton to give the license, and the entry of the other defendants without the license. But Hatton, as already seen, is not responsible for the wrongful entry of the other defendants, nor the other defendants for the wrongful refusal of Hatton. Neither of the causes of action affects all the defendants, and hence they are improperly united in the complaint. Nichols v. Drew, 94 N. Y. 22; Chipman v. Palmer, 77 N. Y. 51; Jackson v. Brookins, 5 Hun, 530; Kelly v. Newman, 62 How. Pr. 156; Gardner v. Ogden, 22 N. Y. 327, 340; Malone v. Stilwell, 15 Abb. Pr. 421; Wells v. Jewett, 11 How. Pr. 242; Van Steenburgh v. Tobias, 17 Wend. 562. We concur with the learned trial judge in the conclusion that the complaint shows a cause of action against defendant Hatton. But for the misjoinder, the demurrer should have been sustained. Judgment reversed, and demurrer sustained, with costs; leave to plaintiff to amend or sever, without costs. All concur.