Sheldon v. Lake

40 How. Pr. 489 | New York Court of Common Pleas | 1871

Robinson, J.

The motion to strike out parts of the complaint as irrelevant and redundant is denied, except the sentence hereafter quoted.

The several statements of the plaintiffs as to the acts complained of, have relation to but one continuous transaction, alleged with special circumstances of injury or aggravation as to each step in the progress of the affair, and they constitute a single cause of action for injury to the person, with or without force, in the several occurrences related in the pleading.

They do not constitute separate causes of action. The plaintiff could not sue and recover for the assault first alleged,' as for the act of dragging Mm through the streets, or for the false imprisonment lastly alleged, and again maintain another action for any of the other matters attending Ms arrest and imprisonment (Farrington v. Payne, 15 Johns., 432; Fetter v. Beale, 1 Salk., 11).

The Code of Procedure permits the joinder of separate causes of action for injuries, with or without force, to the person (§ 167, subd. 3); and the court could consolidate such actions as might have been originally joined; but such power is in no way decisive as to the entirety of causes of action, if separately and independently stated, and occurring on different occasions, or as to what might constitute different causes of action. To allow the uniting in one statement, of a cause of action, consisting of different trespasses (where they all substantially arose out of the same act), such as the statement of an assault, an assault and battery and false imprisonment, does not prejudice the defendant, since he may in Ms answer confess, deny or justify .each separate act; while to regard them as separate causes of action and subjects of different suits, would be allowing an unwarrantable splitting up of controversies.

The several subjects of complaint having reference to an entire, although continuous transaction, their joinder as one is properly allowed without charge of irrelevancy or redundancy.

The case disclosed by the complaint is one of injury to the person, andprima ¡facie actionable.

The allegation that such acts are “ contrary to the laws of the State, and in violation of the same (contra pacem regis),” was, under the old system of pleading, regarded as mere matter of form, and not traversable (1 Chitty Pl., 422; Gardner v. Thomas, 14 Johns., 134). It is equally so under the Code, as a mere matter of form, or conclusion of law, and is not necessary or proper to be stated. The rights of the parties are to be judged solely by the facts stated ; and the allegations last above quoted ought to be stricken out as irrelevant and redundant.

Ho costs are allowed.

Order accordingly.