Cohen v. Jarecky — 35 N.Y.S. 935

Majority

p. 935

COHEN v. JARECKY.

(Supreme Court, General Term, First Department.

November 15, 1895.)

Headnote

Pleading—Sefabate Causes of Action against Difpebent Defendants.

In an action against a physician and a druggist for negligently prescribing, preparing, and- compounding a medicine, it appeared from the complaint that the physician participated in all of the processes, but that the druggist had nothing to do with formulating the prescription, but was concerned only with its preparation. Held, that the causes of action must be separately stated.

Appeal from special term, New York county.

Action by Max Cohen, as administrator of the estate of Solomon Cohen, deceased, against Herman Jarecky, impleaded with others, to recover damages for negligence causing the death of plaintiff’s intestate. From an order denying a motion to make the complaint more definite and certain, defendant appeals. Reversed.

p. 936

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

A. L. Fromine, for appellant.

A. Levy, for respondent.

This action was brought to recover damages against two of the defendants as druggists, and one of the defendants as a physician. The allegation of the complaint is that the defendant Jarecky was employed as a physician, and that the defendants prescribed, prepared, compounded, and furnished a certain medical preparation or medicine to be administered to the deceased, and'which was, by the direction of the defendants, administered to the deceased, and that the defendants so negligently prescribed, prepared, and compounded such medicine as to mix therewith a certain deadly poison, unknown to either deceased or his parents, and defendants, knowing that such medicine was to be administered to an infant of tender years, did carelessly, negligently, and wrongfully prepare a certain mixture containing a deadly poison, fatal to human life, and did negligently and wrongfully direct, order, and prescribe that the same be administered to said deceased. It is not alleged in the complaint that the defendant druggists had anything to do with the formulation of the prescription. Their sole dereliction, if any, was in the preparation and composition of the prescription. It is alleged apparently that the defendant physician participated in the preparation and compounding of the prescription, yet it is not certain that it was the intention of the pleader so to allege. It is clear, however, that no cause of action is alleged against the druggists for negligence in the formulation of the prescription, and they have no concern with any liability which the defendant physician may be under because of such negligence, if it existed. Consequently, the causes of action against the defendants are not identical, and the defendants are entitled to have them separated in such manner as to raise the question of misjoinder or sufficiency by demurrer.

The order should be reversed, with $10 costs and disbursements, and the motion granted to make the complaint more definite and certain, with $10 costs to the separate appellants. All concur.