Majority
p. 505Ben Klein, Plaintiff, v. John Betzold, Doing Business under the Firm Name and Style of Betzold Bros., and Federal Fur Dyeing Corporation, Defendants. Supreme Court, New York Special Term, November, 1922.
Headnote
Practice — when action to recover damages to and loss of personal property severed as to the several defendants.Where an action to recover damages to and loss of personal property was brought against two defendants with one of whom plaintiff’s transactions were entirely different and distinct from his transactions with the other, an order of severance will be granted; in such a case section 213 of the Civil Practice Act does not warrant a joinder of defendants.
Motion to sever causes of action.
Frank F. Bergenfeld, for plaintiff.
Rosenthal &. Heermance (Charles K. Allen, of counsel), for defendants.
Section 213 of the Civil Practice Act does not warrant joinder of defendants as attempted here. The action is to recover for damage to and loss of personal property. Plaintiff had one defendant dress 4,000 pieces of fur. After said defendant returned them, plaintiff sent 2,147 of them to the other defendant
p. 506
for dyeing. It is alleged that they were improperly dyed and improperly dressed and “ that as a result of either the dressing or dyeing, or both, the said skins have been ” damaged, and that 25 of them were never received back from the dyer. With each. defendant plaintiff dealt separately. Defendants did not act together or even at the same time. No relationship between defendants or their acts is alleged. Plaintiff’s transactions with one defendant were entirely different and distinct from his transactions with the other. The “ doubt ” referred to in said section 213 must be considered to be a fair doubt as to whom plaintiff should look to right a single wrong and not a doubt as to whether one or several persons have separately wronged plaintiff. An order of severance will be made. Settle order on notice.
Ordered accordingly.