Majority
p. 789Bryce Gray et al., App’lts, v. Maier Rothschild et al., Resp’ts.[1] John F. Sherman et al., App’lts, v. Maier Rothschild et al., Resp’ts. (Court of Appeals, Filed January 29, 1889.)
Headnote
Demurrer—Misjoinder of plaintiffs—Separate causes of action— When same cannot be joined by different plaintiffs against same defendant—Code Crv. Pro. , § 446.The plaintiffs consisted of seven different firms, who sold goods at different times to the defendants, who were co-partners. The complaint alleged that the goods had been obtained by means of false representations, and that there was a conspiracy to defraud the vendors. The action was brought for the recovery of damages, in the aggregate, to the sum owing to the several firms joined ns plaintiffs. Held, that while each plaintiff might have a good cause of action against the defendant, they have none common to all or jointly with each other, and the objection appearing on the face of the complaint, a demurrer was well taken.
Appeal from an order and judgment of the supreme court, general term, first department, affirming an order and an interlocutory judgment entered thereon at a special term thereof sustaining a demurrer to the plaintiffs’ complaint. The facts will be found fully stated in the report of the general term opinion. 16 N. Y. State Rep., 221.
Henry L. Landon, for app’lts ; Otto Horwitz, for resp’ts.
It may very well be that each plaintiff has a good cause of action against the defendants, but the plaintiffs have none common to all or jointly with each other. Each individual and each firm may have been defrauded by similar, although not the same, representations, but the complaint shows that each has suffered separately, and its whole scope and meaning is inconsistent with the idea that the plaintiffs, or any two or more of them, are jointly prejudiced. As the objection appears upon the face of the complaint, the demurrer was well taken.
The judgment should be affirmed.
All concur.