Sherman v. Rothschild — 16 N.Y. St. Rep. 230

Majority

p. 230

John F. Sherman and Others, App’lts, v. Maier Rothschild and Others, Resp’ts.

(Supreme Court, General Term, First Department,

Filed May 18,1888.)

Headnote

Misjoinder op plaintiff—Separate cause of action.

A joint action by several and distinct parties claiming several and dis tinct damages cannot be maintained.

The plaintiffs obtained judgment by confession against Charles M. and Jacob M. Rothschild, and then commenced a common action against the same persons as are defendants in the case just disposed of, to recover the damages which they had sustained by the sale and delivery of goods to the firm of Charles M. Rothschild & Co. Fourteen different sales were relied upon and set forth in the complaint, upon each of which the purchasers of the goods had confessed judgments to the individuals and firms respectively making the sales. There are eleven of these firms and three individual vendors. The complaint in this action in no substantial degree differs from that in the other suit, except by the circumstance that these judgments by confession have been entered.

p. 231

The judgments in no manner advance the right of the plaintiffs to join in the prosecution of this action For it has not been brought to set aside any unauthorized or fraudulent transfer of the defendant’s property. If it had been, as judgment creditors whose executions have been returned, they could have joined in its prosecution, but they have brought the action to recover damages against the four defendants for the several losses produced by the false representations made to each of the vendors, and the conspiracy for. the success of which such fraudulent representations are alleged to have been made.

In all important respects the case is the same as the other (see ante, p. 221), and cannot be maintained by these plaintiffs for the reasons already assigned. And as the action is not capable of being maintained in this form, it follows that the order was right in vacating the attachment which had been issued. For in this case no election was expressed or intimated at the trial or hearing that the action might be retained as to either one of the individuals or firms joined as plaintiffs in the suit.

The judgment and the orders should therefore be affirmed, with the same costs to the respondents.

Van Brunt, P. J., and Brady, J., concur.