Weeks v. Keteltas — 1 N.Y. St. Rep. 96

Majority

p. 96

Weeks v. Keteltas and another.

(New York Common Pleas,

General Term,

June 7, 1886.)

Headnote

1. Lease—Pleading—When complaint alleges cause of action on

CONTRACT.

A complaint states, as the first cause of action, that plaintiff by an agreement in a lease was entitled to the use of the Croton water through certain pipes, etc., and that defendants, who were lessors, willfully and without cause severed those pipes and thereby wholly deprived plaintiff of the use of the water Held, it alleged a cause of action on contract.

2. Same—When complaint sets forth a cause of action on tort—

Misjoinder.

The complaint, for a second cause of action, alleged that defendant trespassed on said premises by forcibly disturbing the water pipes mentioned. Held, a cause of action in tort, and that the twro causes of action cannot be joined.

.3. Trespass not necessarily a breach of covenant of quiet enjoyment —Words in pleadings govern.

Trespass not necessarily a breach of covenant of quiet enjoyment, and if it is sought to plead it as such, the pleadings should plainly show it. The court must be governed by the words of the pleadings without reference to the circumstances.

Appeals from an. interlocutory judgment, sustaining the demurrer of defendants to the complaint herein, and from a final judgment sustaining said demurrer, and dismissing the complaint with costs.

This appeal arises upon a demurrer to the ■complaint of plaintiff, on the ground that it contains two causes of action which have been improperly united.

The statement of the facts constituting each cause of action is separate and numbered, pursuant to section 483 of the Code of Civil Procedure.

The first cause of action states that plaintiff hired and leased from defendants, by a written agreement of lease, certain lofts in John street, for the term of three years; and. that it was agreed in the said lease that the plaintiff, during the term of said lease, should be entitled to the use of the Croton water, by means of the pipes and connections therewith as placed, situated and used, upon said premises.

That the plaintiff entered into the use and occupation of said premises, and has since continued; and now is in the use and occupation thereof.

That on or about the 6th day of February, 1885, the defendants willfully, and without cause, severed the Croton water pipes and connections leading to the premises so leased, by which he had been supplied with Croton water, and thereby wholly deprived plaintiff of the use, benefit and enjoyment of the same, upon said leased premises, to his damage $1,000.

p. 97

The second cause of action set forth in the complaint states that, during the pendency of said lease, the defendants trespassed, or caused a trespass to be committed, upon the premises leased as aforesaid to the plaintiff, and to the appurtenances thereof, by forcibly disturbing said appurtenances, without plaintiff’s license or permission, and disturbing him in his lawful use and enjoyment of the same, and by severing the same and depriving the plaintiff of the benefit and advantage thereof, to his damage $1,000.

An examination of the statement of facts constituting the first cause of action, shows that this cause of action is for a violation of the agreement between plaintiff and defendants, in respect to the use of the Croton water, which is plainly a cause of action on the contract.

The second cause of action alleges that defendants committed a trespass upon the leased premises, which trespass consisted in forcibly disturbing the Croton water pipes mentioned.

This is a cause of action in tort. The plaintiff claims that he intended to allege a trespass as a breach of the covenant for quiet enjoyment. If such was his intention, he does not appear to have done so in his pleading.

A trespass is not necessarily a breach of such a covenant, and if it is sought to plead it as a breach, the pleadings should plainly show that "it is so pleaded.

That is not the case here. We must be governed by the words of the pleadings, without reference to other considerations.

This complaint, in our opinion, sets forth a cause of action in contract, and a cause or action in tort. These causes of action cannot be joined. Keep v. Kaufman, 56 N. Y., 332 .

The judgments of the courts below should be affirmed, with leave to the plaintiff to serve an amended complaint within twenty days from notice of the entry of this judgment, upon the payment, within the same time, of costs, from the service of the demurrer, including those on appeal to this court.

Bookstaver, J., concurs.