101 N.Y.S. 1088 | N.Y. App. Div. | 1907
This action, was brought to recover for legal services rendered by the plaintiffs as attorneys and counselors at law. The. complaint alleges that prior to the month of April, 1902, at various times mentioned, various per'scms, some of whom- are defendants and some of-whom are not,, retained-.the plaintiffs to perform-certain profes^ sional services in and about the formation and organization of a corporation tinder thé laws of the State of New York to take over the business of the said firms, who - were engaged- in the manufacture and sale of cloth hats and caps in the city of New York and other firms engaged in the same line'of business.. The 5 th paragraph alleged that in the month of April, 1902, seven of the defendants, who composed the firms of Simonson & Pachner and H. Lichtenstein & Sons,, retained and employed the said plaintiffs to .render and per-' form professional services as attorneys and counselors at law in and about the matter of the proposed corporation, and in consideration of - the said plaintiffs accepting said retainer and of performing said • services in. s,uch matter, Undertook, promised and agreed to pay the'' plaintiffs the reasonable value of the services to be rendered therein, and also to-pay the reasonable .value of the services theretofore -rendered as alleged in former paragraphs of the complaint; that there
The 6th paragraph alleges that thereafter and in and about the month of April, 1902, two defendants, composing the firm of Simon & Leidersdorf, desiring to become parties to the proposed incorporation and parties to and interested in the said matter, united with the parties mentioned in the 5th paragraph of the complaint, and retained and employed the plaintiffs to render and perform professional services as attorneys and counselors at law in and about the matter of the proposéd corporation, and further alleged a promise to pay for the services thereafter rendered, and also for the services alleged to have been rendered by the plaintiffs under the retainer’s before alleged, and that these defendants also agreed to pay to the plaintiffs the reasonable value of the services rendered prior to the month of April, 1902. There was here alleged a cause of action based upon another contract by which two defendants also agreed to pay for the services performed or to be performed. And the 7th paragraph of the complaint alleged that thereafter, and in and about the month of May, 1902, two defendants, copartners under the name of Seff & Lauterstein, desiring to become parties to the said corporation and parties to and interested in the said matter, united with the parties mentioned in the former paragraphs of the complaint and made with the plaintiffs the same contract as alleged in the 5th and 6th paragraphs of the complaint.
The 8tli paragraph of the complaint alleges that in and about the month of July, 1902, two defendants, Bernhard Lederer and William Lederer (the demurring defendants), desiring to become parties to the proposed corporation and parties to and interested in the said matter, united with the parties mentioned in the 5th, 6th and 7th paragraphs of the complaint, and retained and employed the said plaintiffs to render and perform professional services as attorneys
The complaint then alleged that the plaintiffs accepted the retainers mentioned in the 5 th, 6th, 7th and 8tli paragraphs of the -complaint, and performed the services required from the month of April, 1902, to July 25, 1902, -which services were worth the sum of '$20,000, and seek to recover against all of the defendants jointly a judgment for that amount.
The defendants Lederer demurred to this complaint as improperly uniting several causes of action, and that demurrer was sustained,
It is quite clear that there were here at least four causes of action alleged, based upon separate and several contracts of employment. Each group-of defendants who made a joint promise are responsible for the contract that they made, but the defendants who did not join in the contract made by such group are not responsible for that contract. Section 484 of the Code of Civil Procedure provides that in order to unite several causes of action it must appear upon the face of the complaint that all of the causes of action" so' united, except as-otherwise prescribed-by law, affect all the .parties to. the action. This question was presented in Goldmark v. Magnolia Metal Co. (30 App. Div. 580). We think there is no doubt but that there were here alleged four separate causes of action based upon four independent contracts, and that all of the defendants were not affected by all of the causes of action alleged, and that, therefore, the-demurrer was properly sustained.
The plaintiffs- contend that the judgment is erroneous because it requires them to divide this action into four separate actions, and does not give them leave to amend. Section 497 of the Code of Civil Procedure authorizes this judgment, and, therefore, it was not error.
The judgment should be affirmed, with costs, but as the plaintiffs now ask for leave to amend, such leave is granted and plaintiffs may .amend the complaint .within twenty days upon payment of costs in this court and in the court below.
Patterson, P. J., Laug-hlin, Clarke and Scott,'JJ., concurred.
Judgment affirmed, with costs, with leave to plaintiffs to amend on payment of costs in this court and in the court below. Order filed.
