Barnes v. Smith

16 Abb. Pr. 420

Opinion

By the Court.

*—Mohuriee, J.

The complaint alleges the recovery of three judgments in the State of Pennsylvania, by one Ridgway; the first on the 17th of February, 1858, against the defendant and one John Smith and John G. Diamond; the second on the 18th of December, I860, against the defendant and John G. Diamond; and the third against the defendant alone, on the 18th of December, 1860.

It must be obvious that the complaint must be sustained, if at all, under subdivision 1st or 2d of section 167 of the Code, and quite clearly it is not embraced within the former. If it is sought to bring the case within the latter, then the plaintiff must show that his three causes of action united in his complaint all arise out of “ contract, express or implied,” and • affects all the parties to the action. The plaintiff avers a liability of the defendant arising upon a separate and sole contract, and a joint liability with others arising upon contract made jointly with Diamond and Smith. A judgment may properly be regarded as a contract, &c. (Mahaney a. Penman, 4 Duer, 603.) The defendant cannot be held separately liable to the plaintiff upon his joint contract with Smith and Diamond in this action, instituted against him alone, and it would seem to follow that the complaint is bad in thus uniting three causes of action in which it does not affirmatively appear that a separate judgment conld be given against him.

Applying the test as given in Chitty on Pleading (vol. 1, pp. 228, 229), that “ where the plaintiff has two causes of action which may be joined.in one-action, he ought to bring one action only; and if he commence two actions, he may be compelled to consolidate them and pay the costs, and to pay the costs of the application,” and it is quite plain the causes of action in this complaint are improperly united. If three actions had been commenced,—one against this defendant; another against this defendant, Diamond, and Smith; and a third against this defendant and Diamond,—it could not he contended that the court would entertain an application to consolidate those actions.

The order was correct, and should be affirmed with costs.

Present, Moncbiee, Bobektson, and Monell, JJ.