125 N.Y.S. 366 | N.Y. App. Div. | 1910
The first ground of demurrer is that an action for breach of contract is joined with an action for the conversion of personal property and that such causes of action are not consistent with each other, and do not fall within any one of the subdivisions of section 484 of the Code of Civil Procedure.
I am of the opinion that the demurrer was well taken. It is evident that the plaintiff has attempted to set forth two causes of action separately numbered and stated to recover the same amount of damages on two different theories ; but it does not necesssarily follow that the causes of action may be. joined in one complaint. In the first cause of action it is alleged that defendant leased to the plaintiff certain rooms in "the 320-322 Fifth avenue building; and that between the 5th day of March and the 1st day of April, 1909, the defendant “unlawfully and wrongfully took and converted” certain personal property of the plaintiff lawfully on the leasehold premises, “ and disposed of the same to its own use;” whereby the plaintiff sustained damages in the sum of $3,843. In the second cause of action it is alleged that it was provided in the lease that the defendant should cause the premises to be cleaned and cared for and should be responsible for the loss of property “ in or from said leased premises caused by the gross negligence ” of the janitor or his assistants; that the premises were part of an office building containing freight and passenger elevators which were in charge of the servants of the defendant who had access to the premises; that the defendant, not regarding its duty, “ so negligently conducted itself in caring for said premises and property that through the gross negligence and misconduct of the defendant, its servants and agents, and without negligence on the part of the plaintiff, said property was removed from said premises in the absence of the plaintiff, his servants and agents, by some person or persons unknown to the plaintiff, and thereby said property was wholly lost to the plaintiff, to his damage,” in said sum of $3,843.
In an action for conversion an order of arrest might be obtained and a body execution issued on the judgment. (Code Civ. Proc. §§ 549, 556, 557.) But no such relief can be had in an action for breach of contract by which personal property has been lost as alleged in this complaint. Although this may not be a controlling
It is quite clear, I think, that the cause of action for the wrongful conversion of personal property by the defendant is not consistent with a cause of action for the breach of an agreement on its part to safeguard the property against loss, whereby through its neglect ta perform its contract duty the property was removed and appropriated by a third party. If the property was converted by the defendant it surely was not taken by a third party through its neglect to care for it. Conversion implies a wrongful and willful act on the part of the defendant.
Moreover, I am of the opinion that the claim for conversion and the claim for breach of contract do not arise out of the same transaction oi transactions connected with the same subject of action within the scope and meaning of subdivision 9 of section 484 of the Code of Civil Procedure. The “transaction” upon which «the cause of action foi conversion is based was the conversion. (See People v. Dennison, 84 N. Y. 272; Story v. Richardson, 91 App. Div. 381; affd., 181 N. Y. 584; Van v. Madden, 132 App. Div. 535; Deagan v. Weeks, 67 id. 410, and Heigle v. Willis, 50 Hun, 588.) On the other hand the subject of the action for the breach ot contract and the transaction upon which it was based are the contract and the facts constituting the breach. (See Lehmair v. Griswold, 40 N. Y. Super. Ct. 100; Carpenter v. Manhattan life Ins. Co., 93 N. Y. 552, and Rothschild v. Whitman, 132 id. 472.)
Ingraham, P. J., Scott, Miller and Dowling, JJ., concurred.
Judgment reversed, with costs, and. demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.