Black v. Strang

167 A.D. 149, 152 N.Y.S. 515, 1915 N.Y. App. Div. LEXIS 7388

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 1915
• Status: Published

Opinion

Stapleton, J.:

The complaint, excepting the introduction and demand, reads: “That on or about the 28th day of October, 1912, at the borough of Brooklyn, city of New York, the defendants forcibly, wrongfully and illegally took and carried away from the possession of this plaintiff, certain personal property and effects, her property, of the reasonable value of sixty-five hundred ($6,500) Dollars, and wrongfully and illegally converted the same to their own use to the damage of this plaintiff in the sum of Ten thousand ($10,000) Dollars, which she claims.”

The answer contains this denial: “Upon information and belief, he denies each and every allegation in said complaint contained.” It also contains this plea: “ For a fourth, separate and distinct defense, he alleges: IV. Upon information and belief, that causes of action have been improperly united in the complaint herein, in that this defendant did not do, perform, commit, engage in, participate in, advise, direct, or assent to, any of the acts alleged by the complaint herein to have been done, performed, committed, engaged in, participated in, advised, directed and assented to by the defendant Charles D. Strang; and that said defendant, Charles D. Strang, did not do, perform, commit, engage in, participate in, advise, direct, or assent to, any of the acts alleged by the complaint herein to have been done, performed, committed, engaged in, participated in, advised, directed, and assented to by this defendant.”

The plaintiff demurs to the defense purporting to consist of new matter on the ground that it is insufficient in law upon the face thereof. The judgment appealed from disallowed the demurrer.

I quote from the respondent William H. Strang’s argument in support of his theory of pleading: “The defense offered by this [fourth] paragraph is, that if the defendants are guilty, each is guilty of a separate tort, which constitutes an independent cause of action, and that these independent causes of action may not be united in a single complaint.”

The design of the pleader who drafted the complaint is to state a cause of action for damages against joint tort feasors for a tort not in its nature essentially several.

Where two or more persons are sued jointly for a conversion a joint taking must be proved. (Williams v. Sheldon, 10 Wend. 654, 656; Pom. Code Rem. [3d ed.] § 281.)

In Purington-Kimball Brick Co. v. Eckman (102 Ill. App. 183-185) the jury exonerated one of two sued jointly for negligence. The culpable defendant contended that the action was improperly brought against the two defendants “because one of them had nothing whatever to do with the-wrong,” if the verdict was to be taken as conclusive of the facts. The court said: “ If the declaration alleges as the cause of action the joint negligence of two or more defendants, the error, if any, in the joinder, can be reached neither by demurrer nor by plea in abatement. The truth or falsity of this allegation must be determined by the facts shown on the trial. The proper plea for those not guilty is the general issue. The reason is that a tort may be treated as joint or several.”

A general averment to the effect that causes of action have been improperly united is insufficient. (Wenk v. City of New York, 82 App. Div. 584, 588.)

The statement is little more than a denial of material allegations of the complaint. It is, however, so much more than a mere denial as will permit it to be reached by demurrer as an abortive effort to state a special defense.

In McManus v. Western Assurance Co. (43 App. Div. 550, 557) this court said: “ A general denial is always the scientific and sufficient way to put in issue all that the plaintiff has necessarily pleaded and must prove, though it seems to be growing very much out of mind in the profession. The defendant should never plead as a ‘ defense ’ anything which is embraced within the general issue raised by a general denial. A defense can consist only of new matter, viz., matter outside of such general issue. (Code Civ. Proc. § 500.) ”

I advise a reversal of so much of the interlocutory judgment as adjudges that the plaintiff’s demurrer to the fourth separate defense of the amended answer be overruled, and that judgment allowing a demurrer to the fourth separate defense of the amended answer be directed, with costs.

Jenks, P. J., Burr, Thomas and Rich, JJ., concurred.

So much of the interlocutory judgment as adjudges that the plaintiff’s demurrer to the fourth separate defense of the amended answer be overruled reversed, and judgment allowing a demurrer to the fourth separate defense of the amended answer directed, with costs.