Porter v. International Bridge Co.

60 N.Y.S. 819 | N.Y. App. Div. | 1899

Smith, J. :

By section 484 of the Code of Civil Procedure the plaintiff may unite in the same complaint “ two or more causes of action, whether they are such as were formerly denominated legal or equitable or both. * * *

“ 9. Upon claims arising out of the same transaction or transactions connected with the same subject of action and not included within one of the foregoing subdivisions of this section.

“ But it must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section ; that.they are consistent with each other; and, except as otherwise prescribed by law, that they affect all the parties to the ¿action; and it must, appear upon the face of the complaint that they do not require different places of trial.”

Assume, then, for the argument, that two causes of action are united, one in ejectment for the possession of the land, another to declare void a claimed easement and for an injunction against trespass. Both causes of action are connected with the same subject of action, to wit, the occupancy of plaintiffs’ land. They are not inconsistent, as both assume a wrongful entry and plaintiffs’ consequent right of redress. They do not require different places of trial. All the requirements of the Code of Civil Procedure are, therefore, satisfied. '

■ The defendants, however, challenge the joinder upon two grounds : First, that causes of action are joined which require different modes of trial, one of which is to be tried by the court; in the other there is a constitutional right to trial by jury. But this is expressly permitted by the statute. Legal and equitable causes of action may be united in the same complaint. If authority be needed for this prop-position it may be found in the case of Lattin v. McCarty (41 N. Y. 109). Another ground of challenge is that the cáuses of. action are subject to different rules of limitation, But this is nowhere made a cause of objection to their joinder. The court can in the same action apply the different statutes if. need be to the different causes of action. The' objection that one cause of action sounds in tort while the other is free from tort has no support. Both causes of action are based upon the wrongful entry by the defendant companies.

But the decisive answer to the defendants’ demurrer is that one cause of action only is alleged as against the defendant companies. They have entered upon this land and by their occupancy and use have practically exclusive, possession. The plaintiffs charge their possession to be unlawful and seek only to expel them from the land. It is true that the complaint alleges that the defendants base their right of possession, both upon an unwarranted permit from the city of Buffalo and upon other adverse titles. But whatever titles, and however many they may call to support their claimed right of occupancy, the single cause of action still remains to oust them, from the land upon which they have wrongfully entered and which they wrongfully hold. It is not necessary here to determine whether this cause of action be one in equity or one at law. It is true that the complaint alleges that the rights of the city of Buffalo have ceased and determined. It is possible that under this complaint a judgment might be authorized granting possession to the plaintiffs as against all defendants. As against the demurring defendants; however, one cause of action is urged and one relief demanded. The demurrers were properly overruled.

All concurred.

Interlocutory judgment affirmed, with costs, and leave given to defendants to withdraw their demurrers and answer within twenty days from service of copies of judgment .of this court, with- notice of entry, upon payment of the costs of the demurrer and of this appeal.