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Glancey v. McClure

123 N.Y.S. 36 Court N.Y. App. Term Decision date 1910-05-24 English

Delivered by SEABURY, J.

Contents

Majority

p. 36
GLANCEY v. McCLURE.
(Supreme Court, Appellate Term.
May 24, 1910.)

Headnote

Action (§ 50[1] )—Misjoinder.
Under Municipal Court Act (Laws 1902, c. 580) § 146, providing that two or more causes o£ action may be united in the same complaint, where they affect all the parties, a complaint joining causes of action one of which states a cause of action on a contract which does not affect all the parties to the action is demurrable.
[Ed. Note.—For other cases, see Action, Cent. Dig. § 511; Dec. Dig. § 50.*]
Appeal from Municipal Court, Borough of Manhattan, First District. ■
Action by John E. Glancey against Thomas C. McClure. - Judgment for plaintiff, and defendant appeals.
Reversed.
Argued before SEABURY, LEHMAN, and PAGE, JJ.
David Ross, for appellant.
George E. Quigley, for respondent.

The defendant appeals from an interlocutory judgment overruling the demurrer which he interposed to the complaint. The grounds of the demurrer were that two causes of action were improperly united, and that each of said alleged causes of action fail to state facts sufficient to constitute a cause of action.

It is evident from an inspection of the complaint, and it is now conceded, that the first alleged cause of action does not state facts sufficient to constitute a cause of action against the defendant McClure. The cause of action alleged arose on contract, and does not affect all the parties to the action. They were therefore improperly joined 'in the same complaint. Section 146 of the Municipal Court act (Laws 1903, c. 580).

The interlocutory judgment is reversed, with costs, and the demurrer sustained, with leave to plaintiff to amend the'complaint upon payment of the costs in this court and in the court below. All concur.