Bahr v. Boley — 32 N.Y.S. 881

Majority

p. 881

BAHR v. BOLEY.

(Supreme Court, General Term-, Second Department.

March 5, 1895.)

Headnote

Complaint—Misjoinder op Cause—Continuation op Trespass.

A complaint for trespass in ejecting plaintiff from his land, which further alleges that defendant “maliciously, and without cause, caused the plaintiff to be arrested and taken through the public streets * * * to a station house, in charge of a policeman in uniform, and from said station house to a police magistrate, who discharged him,” states but one cause of action-, the arrest of plaintiff being alleged merely as an aggravation of the trespass sued for.

Appeal from special term, Kings county.

Action by Jacob G-. Bahr against Benjamin Boley for trespass. From an order overruling a demurrer to the complaint as frivolous, defendant appeals. Modified.

Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.

Louis Wertheimer, for appellant

J. Stewart Ross, for respondent.

This is an appeal from an order of the special term overruling the defendant’s demurrer as frivolous. The action is for a trespass on the plaintiff’s land, ejecting him therefrom, and the conversion of plaintiff’s property. The complaint further related that:

“And on the said day, after forcibly assaulting and ejecting plaintiff, the defendant maliciously, and without cause, caused the plaintiff to be arrested and taken through the public streets of the city of Brooklyn to a station house, in charge of a policeman in uniform, and from said station house to a police magistrate, who discharged him.”

The defendant demurred, on the ground that several causes of action were improperly united. There is no doubt that in an action for trespass on lands the plaintiff could allege and prove all his injuries caused by the trespass, either to his person or to his personal property. In such case the cause of action would be the trespass, and the injury to person and property be not an independent cause of action, but an aggravation of the damage. We think that the allegation of the complaint quoted is to be construed as alleging the continuation of a single trespass. In this view there is but a single cause of action set forth in the complaint. It may be that

p. 882

the question presented by the demurrer was sufficiently debatable to have warranted the court in-ref using the application,' but, as we believe the demurrer untenable, it is not worth while to remit the parties to another hearing.

The order appealed from should be modified by granting the defendant leave to withdraw his demurrer and answer, on payment of the motion costs, and, as modified, affirmed, without costs of appeal to either party. All concur.