205 A.D. 669 | N.Y. App. Div. | 1923
Lead Opinion
Defendant moved for an order adjudging that there is a misjoinder of parties plaintiff to this action, because the cause of action set forth in the complaint cannot accrue to both plaintiffs, one the maker and the other the payee of the check in suit, and for a further direction that an amended complaint may be served as required by the decision of the court.
The facts out of which the controversy arose indicate that the plaintiff Olsen, desiring to pay a debt owed to the plaintiff Irwin, procured a check of his on the defendant Bankers Trust Company to be certified by that bank and delivered it to a messenger to be carried to the plaintiff Irwin. The check was never delivered to Irwin, but apparently was forged and the proceeds paid by the Bankers Trust Company to some unauthorized payee. Thereafter on the return of the voucher to Olsen, and his discovery of the forgery, he made a redelivery of the check to Irwin, who
The authority for the procedure of the plaintiffs is sought to. be found in section 209 of the Civil Practice Act which gives the instances in which persons may be joined in one action as plaintiffs, and provides, in effect, that such persons in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate actions, any common question of law or fact would arise, may have a joinder of the cause in one complaint. The court, however, is permitted upon the application of any party, where it appears that the joinder may embarrass or delay the trial of the action, to make an order for separate trials, or such other orders as may be expedient. The judgment may be pronounced for one or more of the plaintiffs, as he or they may be found entitled to relief. This enactment does not seem to me to be authority, under the facts of this transaction or series of transactions as they are given in the complaint, to join these parties as plaintiffs. The claims of these plaintiffs are not co-ordinate, alternative or complementary. They are not joint nor several nor common. They are mutually destructive. If one plaintiff proves his right to recover, the other’s claim must perforce be entirely extinguished. The payee of an accepted bill, which corresponds in banking law to a certified check, where he has not procured the drawee to accept, still has his claim against both the drawer and acceptor of the bill, that is, the maker, and the bank certifying in the case of a check. Where the payee procures certification the acceptor becomes the debtor; the fund is assigned to the payee and the maker is wholly discharged from his obligation of the debt. The payee must thenceforward look solely to the acceptor or certifying bank. If the payee here have title to the check, the deposit in the bank remains wholly to the credit of the check and is forever withdrawn from the control of the maker. If the check has been reassigned to the maker and he is now the lawful holder and owner thereof, his right to have the amount of funds, which by reason of the certification had been held to the credit of the check, recredited to him, or paid by the bank to him, is a right in him alone. There
The order should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with direction to serve an amended complaint on payment of said costs.
Clarke, P. J. and Dowling, J., concur; Smith and Finch, JJ., dissent.
Dissenting Opinion
Section 209 of the Civil Practice Act authorizes a joinder of the parties plaintiff in the case at bar. Said section reads in part as follows: “ All persons may be joined in one action as plaintiffs, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist whether jointly, severally or in the alternative, where if such persons brought separate actions any common question of law or fact would arise * *
If a separate action were brought by each plaintiff there would be common to both such actions the questions as to the drawing, certification, indorsement, presentation and improper payment of the check in question, which check is the subject-matter of both actions. While a recovery by one plaintiff would prevent a like recovery by the other, the facts alleged in the complaint show a liability in the alternative. The statute by its express terms refers to a right in more than one person in the alternative. There appears no ambiguity whatsoever. Where the language is definite and precise there lies no room for implication and exclusion. (McCluskey v. Cromwell, 11 N. Y. 593, 601.)
As yet there are not many decisions involving this section. Said section, however, was taken from the English Practice Act (Rules of the Supreme Court, order XVI, rule 1), which has been the subject of many decisions by the courts of that country. In 1894 it was held that the rule as then constituted had no reference to the joinder of several causes of action, but merely with the parties to an action. (Smurthwaite v. Hannay, L. R. [1894] A. C. 494.) To meet that objection the rule was amended in 1896 so as to read
It is to be noted that, even before the amendment of the rule as aforesaid, it was said (Smurthwaite v. Hannay, supra): “ The rule applies to cases where it is doubtful in which of the plaintiffs, or in what number of the plaintiffs, and whether jointly or severally, the legal right to relief exists, and also to cases * * * in which several plaintiffs having separate rights claim the same relief.”
It is the policy of the English courts to accord a liberal construction to the rules of this order with a view to simplifying the practice and curtailing litigation. (Payne v. British Time Recorder Co., Ltd., L. R. [1921] 2 K. B. 1.) That case involved a construction of rule 4 of order XVI of the English Rules of the Supreme Court (similar to Civ. Prac. Act. § 211), which, although applying to defendants, is a direct authority on the meaning of the phrase “in the alternative.” It reads: “All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. * * *.”
In the case last above cited it was held that “ where claims by or against different parties involve or may involve a common question of law or fact bearing sufficient importance in proportion to the rest of the action to render it desirable that the whole of the matters should be disposed of at the same time the
So in the case at bar there are common questions of fact and law involved, and in the absence of a showing of prejudice by another party to the action, there is a proper joinder.
It follows that the order should be affirmed, with ten dollars costs and disbursements.
Smith, J., concurs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to serve an amended complaint on payment of said costs.