Hubbell v. Lerch

62 Barb. 295, 1872 N.Y. App. Div. LEXIS 74

• Court: New York Supreme Court
• Decided: May 7, 1872
• Status: Published

Opinion

By the Court,

Johnson, J.

The complaint manifestly contains two counts, and has two causes of action which are entirely hostile to each other, and which do not equally affect all the parties to the action as required by section 167 of the Code. Here are two plaintiffs, each claiming under a title adverse and hostile to the other, and each, apparently, upon the face of the complaint, having a good cause of action against the defendant in his own right. Bach cause of action is set out separately, under different heads, or numbers, in the usual way of stating separate causes of action. Ho fact is stated to show, that either plaintiff is interested in, or affected by, the title and cause of action alleged by the other. What is stated under the fourth head or division of the complaint—that each of the plaintiffs are owners in fee,- and each entitled to the possession of the premises for the use and benefit of the plaintiff Alrick Hubbell—is a mere legal conclusion, which appears by the facts previously stated to have no foundation whatever. It is, in fact, an attempt by two plaintiffs, claiming’title to the same premises from different sources, entirely ádverse and hostile to each other, to compel the defendant to litigate, and defend against these two causes of action, and two hostile parties plaintiffs, in a single action. It presents the precise question that was decided in St. John v. Pierce, (22 Barb. 362,) which arose in the same way in which the question is- presented here. The demurrer was there sustained, as we think, upon sound and correct principles. It is clearly shown, by the opinion in that case, that the former practice of natning several parties as lessors of the plaintiff, or 'of uniting several parties as plaintiffs, who might claim by separate and distinct counts, under different titles or demises, has been abolished by the Code. . The action for the recovery of the possession of real property, now stands upon the same footing, precisely, in respect to parties, and the union of causes of action in a single complaint, with all other "actions. The Revised Statutes, while they abolished the use of .fictitious parties in this class of actions, retained the other part of the fiction, of the use of claims under various and hostile demises, and using the. names of as many different parties as plaintiffs. Smith v. Dewey, (15 Wend. 601.)

[Fourth Department, General Term, at Oswego, May 7, 1872.

Mullin, P. J., and Johnson and Talcott, Justices.]

■ The Code abolished all these fictions together, and required all actions to be brought in the name of the real party in interest, except in the cases provided for in sections 111 and 113, and that such party should state, in his complaint, the facts constituting his cause of action, in a concise manner, without unnecessary repetition. The manifest design was, to abolish all fictions in actions, both as respects parties and pleadings. • We think the demurrer was properly decided at special term, and that the order should be affirmed.