Friz v. Pfaff — 137 N.Y.S. 886

Majority

p. 886

(78 Misc. Rep. 121.)

FRIZ v. PFAFF et al.

(Supreme Court, Appellate Term, First Department.

November 8, 1912.)

Headnote

Courts (§ 189*)—Joinder—Municipal Court Act.

An action upon a contract to convey certain premises cannot be joined with an action against defendant therein and another for the breach of a covenant contained in a deed delivered by both of such defendants to plaintiff, since the two causes of action are distinct, and not within Municipal Court Act (Daws 1902, c. 580) § 146, which provides that, on a joinder of causes of action, it must appear that they all affect all the parties to the action.

[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 409, 412, 413, 429, 458; Dec. Dig. § 189.*]

*For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of Manhattan, Sixth District.

Action by Charles Friz against George Pfaff and Anna Bruch. From a judgment of the Municipal Court in favor of plaintiff, defendants appeal.

Reversed, and complaint dismissed.

Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.

Frederic Leubuscher, of New York City, for appellants.

George Ludwig, of New York City (Theodore Schultheis, of New York City, of counsel), for respondent

Plaintiff has recovered a judgment against both defendants. The return shows that the plaintiff asserts a cause of action against the defendant Pfaff upon a contract, wherein Pfaff agreed to convey certain premises free of water rents and tenement house violations, and also that the plaintiff asserts a

p. 887

claim againsf the defendant Bruch and defendant Pfaff for the breach of a covenant contained in a deed delivered by both of these defendants to the plaintiff.

The two causes of action, upon which the plaintiff has recovered judgment against both defendants, are entirely separate and distinct. The defendant Bruch was not a party to the agreement for the sale of the property, and cannot, therefore, be sued for a breach of its conditions. While both of the defendants signed the deed, for the breach of the covenants in which the plaintiff also seeks a recovery, the rights of the plaintiff growing out of the alleged breach of covenant in the deed constituted a cause of action entirely distinct from thé cause of action growing out of the alleged breach of the contract to sell. Where there is a joinder of causes of action, it must appear that all the causes of action affect all the parties to the action. Municipal Court Act (Laws 1902, c. 580) § 146. The defendants attempted to avail themselves of this objection in the court below, but the learned court held adversely to their contention.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.