William C. Will Co. v. Canadian National Railway Co.

Majority

p. 239

William C. Will Company, Inc., Respondent, v. Canadian National Railway Company, Appellant, Impleaded with Wabash Railway Company, Defendant.

Fourth Department,

March 17, 1926.

Headnote

Pleadings — joinder of actions — actions against carriers based on failure to deliver separate shipments made by each carrier — actions cannot be joined under Civil Practice Act, art. 24.

Two causes of action against common carriers based on failure to deliver two separate shipments on different dates cannot be joined under article 24 of the Civil Practice Act, where it appears that one cause of action is based on the failure of one carrier to deliver a shipment and the other cause of action is based on the failure of the other carrier to deliver a separate and distinct shipment.

Appeal by the defendant, Canadian National Railway Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 23d day of December, 1925, denying said defendant’s motion to compel the plaintiff separately to state and number its causes of action as to each defendant.

Moot, Sprague, Brownell & Marcy [James E. Foody of counsel], for the appellant.

O’Grady, Orr, Morgan & Dudley [Justin C. Morgan of counsel], for the respondent.

Plaintiff in its complaint sets up two causes of action. The first is for damages for failure to care for and duly deliver certain poultry claimed to have been delivered to one or the other of these defendants on November 25, 1924. The second alleged cause of action is for similar damages in connection with a similar consignment from the same station alleged to have been delivered for transportation on December 16, 1924. Uncertainty in the plaintiff as to the identity of the carrier is claimed in each instance, the same person representing both defendants at the shipping point.

On the ground that the plaintiff had misjoined causes of action and defendants, the defendant Canadian National Railway Company alone moved for an order requiring plaintiff to serve complaints wherein it should separately state and number its said two alleged causes of action and “ for such other further and different relief.”

This motion was denied and this appeal results.

Two distinct and separate transactions, inaugurated at different times, are alleged in the complaint. It is immediately apparent

p. 240

that this plaintiff has either two joinable causes of action against one defendant or two similar causes of action against two different defendants.

In the first alleged cause of action a bill of lading was concededly furnished by the defendant Canadian National Railway Company, and in the second alleged cause of action by the defendant Wabash Railway Company. Prima facie such bills of lading are not only receipts but contracts to carry and safely deliver. (Long v. N. Y. C. R. R. Co., 50 N. Y. 76 ; Pollard v. Vinton, 105 U. S. 7 .)

It is manifest that two separate causes of action against different defendants have been joined, which may not be united in one complaint under article 24 of the Civil Practice Act. Therefore, the order appealed from should be reversed and the motion granted to the extent of directing plaintiff to serve an amended complaint setting forth only its alleged cause of action against the defendant Canadian National Railway Company, the only defendant appealing.

Present — Hubbs, P. J., Davis, Sears; Crouch and Taylor, JJ. All concur.

Order reversed, with ten dollars costs and disbursements, and motion granted in accordance with the opinion.

Cases cited

Long v. New York Central Railroad 50 N. Y. 76 N.Y. 1872-06-20 p. 240
Pollard v. Vinton 105 U. S. 7 SCOTUS p. 240