Barton v. Speis

12 N.Y. Sup. Ct. 60

• Court: New York Supreme Court
• Decided: June 15, 1875
• Status: Published

Opinion

Mullin', P. J.:

This action is brought against the defendants, the one as maker, and the other, the wife, as guarantor of said note. The defendants demur separately, because of the improper joinder of two independent causes of action. The demurrers were allowed, and leave given to the plaintiff to amend. The order of the Special Term was right, for the reason stated in the opinion of HardiN, J., and must be affirmed. We áre referred to cases in support of the proposition that a demurrer will not lie to a complaint for joining in the same count two distinct causes of action. The complaint can only be demurred to for an improper joinder of causes of action when they are set out in separate counts. When they are contained in a single count, the remedy of the defendant is by motion. (Cheney v. Fisk, 22 How., 236, so holds.) In this case, there is not a joinder in .one count of two causes of action, but each cause of action is against one of the defendants only. What remedy can defendants get by motion in such a case? If the husband was to have the suit dismissed as to him, or, what is the same thing, the cause of action against him stricken out, the plaintiff might say he was the party primarily liable, as he is the one who is most able to pay the debt, and he ought not to be turned over to a less certain liability against the wife. If the wife moved, plaintiff might say-that she was the only one who had the ability to answer over in damages, and he ought not to be turned over to a party less able to pay. There being no joint liability, no joint motion can be made. There being a misjoinder of causes of action, the case seems to be a proper one for a demurrer.

Order of the Special Term affirmed, with leave to plaintiffs to amend on payment of the costs of the demurrer.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed.