140 N.Y.S. 380 | N.Y. App. Div. | 1913
Plaintiffs appeal from a final judgment sustaining a demurrer to the complaint. It is necessary for us to consider but two of the objections therein specified, namely, the failure to state facts sufficient to constitute a cause of action and the improper union of causes of action.
In examining a complaint consisting of 283 pages of closely-printed matter, it is somewhat difficult to extract therefrom the facts which plaintiffs contend constitute a cause of action. We think that this fairly summarizes them: About April 27, 1876, one of the plaintiffs, the Prospect Park and Coney Island Bail-road Company, became the owner of certain lands at Coney Island, on both sides of Surf avenue, the southerly boundary of which was the Atlantic ocean, and it has continued and now is in the exclusive possession thereof, except as to a portion which has been acquired by the city of New York. In August, 1888, Catherine A. Balmer, another of plaintiffs, and about March 12, 1904, Dreamland, a third of the plaintiffs named, each became the owner of separate pieces of land similarly situated, the former lying to the east and the latter to the west of the railroad lands. Each of these plaintiffs has since these ■respective dates maintained exclusive possession of the lands conveyed to them, subject to the exception above noted. In February, 1912, the city of New York instituted proceedings to acquire a portion of the lands owned by the railroad company, Balmer and Dreamland respectively, for a public park, and on March 14, 1912, title to said lands was, pursuant to statute, vested in the city of New York. The condemnation proceedings are still pending, and the amount of the award to be made to the owners of the land thus acquired has not yet been determined. In September, 1910, plaintiffs
Neither may the action be maintained as an equitable action in the nature of a bill of peace. If the allegation of the complaint in the form of a conclusion of fact is correct, that the Stilwell deed did not include within its words of description the locus in quo, defendants’ claim is, invalid upon its face. From a copy of the deed set forth at length in the complaint, if such is not the case it will at least require proof of extrinsic facts to establish that it did include the same. In such a case a court of equity will not interfere, but will leave the party in possession to his defense. (Scott v. Onderdonk, 14 N. Y. 1; Lehman v. Roberts, 86 id. 232.)
Either the primary deed in the chain of defendants’ title did or did not include the premises in question. If it did not, then assuredly there is no equitable reason for setting such a deed aside. If it did, then either the grantor did or did not have title to the land which he purported to convey. If he did, equity may not set such deed aside, and if he did not, ’ there is no reason for so doing, since included therein is other land as to which, so far as this complaint discloses, there may be no dispute.
But appellants assert in their complaint that defendants have conspired to do injury to the plaintiffs, and that the suits brought by them are fraudulent in character, and that, therefore, the prosecution of such actions should be enjoined. But no action for a conspiracy lies when two or more persons conspire to do a lawful act in a lawful manner and cause damage thereby, even though they may have acted with a malicious motive. (Cohen v. Fisher & Co., 135 App. Div 238.) Defendants claim and assert in their pleadings in
Nor has equity jurisdiction in this case upon the ground that it is necessary to avoid a multiplicity of actions. So far as these plaintiffs are concerned, each of them is subject to one action and one only, namely, that brought to determine the validity of the title to the various pieces of land held by them in severalty. There is a distinction between many actions against many different defendants although the ground of each of these actions may be similar in character, and many actions against a single defendant growing out of the same alleged grievance. In the latter case there maybe “multiplicity” within the legal' aeceptation of that .term, but not in the former.
Neither do we think that plaintiffs here are so united in interest that they may be joined as parties in a single action. (Code Civ. Proc. §§ 446, 448, 484; Howell v. City of Buffalo, 2 Abb. Ct. App. Dec. 412; Bouton v. City of Brooklyn, 15 Barb. 375.) Each of the parties owns a distinct piece of land. Although all trace their title from the same common source, it is by entirely separate and distinct chains. One party may have a good title and the other a defective one. In the ejectment suits one may succeed and another fail. Except sentimentally, neither is concerned in the result of the action
Neither can it be said that plaintiffs have a common interest in the fund which will arise in the condemnation proceedings above referred to after the commissioners shall have determined the amount to be awarded for the lands taken, and their report shall have been confirmed. Although the source of the fund may be common to all, the interest therein of each of plaintiffs whose land is taken will be separate and distinct. But it would he sufficient to destroy any contention that the action might be maintained upon such a ground that no part of the land owned by plaintiffs Feltman is taken in such proceedings, and that they will never have any interest in said fund or any portion thereof. It may be that plaintiffs severally will be put to greater trouble and expense in defending the various actions of ejectment brought against them than if they were permitted to unite in an action of this nature and have the conflicting claims of title determined therein. But that alone is not sufficient to entitle them to the relief asked for.
The judgment should be affirmed, with costs.
Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.
Final judgment affirmed, with costs.
See 1 Colonial Laws of IT. Y. (Comp. Stat. Rev. Comm.) 334, chap. 3; Const. 1777, art. 36; Const. 1831, art. 7, § 14; Const. 1846, art. 1, § 18; Const. 1894, art. 1, § 17.—[Rep.