Gilmore v. Christ Hospital

52 A. 241, 68 N.J.L. 47, 39 Vroom 47, 1902 N.J. Sup. Ct. LEXIS 79

• Court: Supreme Court of New Jersey
• Decided: June 9, 1902
• Status: Published

Opinion

The opinion of the court was delivered by-

VAN Syckel, J.

The first count of the declaration sets out a cause of action against both defendants and also a cause of action against the defendant Dickinson alone.

This is a misjoinder of causes of action, and is the subject of general demurrer.

A plaintiff cannot join in one action distinct claims against several defendants. Wills v. Shinn, 13 Vroom 138; 2 Saund. 117a; Hancock v. Haywood, 3 T. R. 433; Drummond v. Dorant, 4 Id. 360; 1 Chit. Pl. 199, 206; Could Pl., ch. 4, §§ 97, 98.

The demurrer to this count is sustained.

The third count of the declaration does not allege any facts which will constitute a cause of action, but avers that “by reason of the aforesaid wrongs and injuries” the plaintiff has suffered damage.

Each count must contain a complete cause of action. The reference to the previous counts cannot in this ease avail the plaintiff. He does not specify- to which count he refers. If he relies upon the statement of alleged wrongs in the first count, the third count is tainted with the vice of the first count. Each count must show affirmatively a legal basis of recovery.

Unless the second count expressly refers to the first, no defect therein will be aided by the preceding count, for though both counts are in the same declaration, yet they are as distinct as if they .were in separate declarations, and consequently they must independently contain all necessary allegations or the latter count must expressly refer to the former. 1 Chit. Pl. *397.

No legal ground of action being set forth in the third count, the demurrer to that count is also well taken.