Frederick Gans, Resp’t, v. Joseph Hughes, App’lt.(City Court of Brooklyn, General Term,Filed November 23, 1891.)Headnote
Pleading—Joinder of causes of action.The complaint in this action alleged that defendant wrongfully entered premises occupied by plaintiff and unlawfully removed and carried away personal property; it also set up three other causes of action for unlawfully entering said premises and interfering with plaintiff’s business on different days. Held, that there was no improper joinder of causes of action; that they were all for trespass.
Appeal from an interlocutory judgment rendered by this court at a special term thereof on a demurrer to the complaint of the plaintiff.
The amended complaint states in the first paragraph that the plaintiff is the lessee of certain premises and is entitled to the quiet possession and enjoyment of the same.
The second paragraph states that the defendant on the 10th day of June “ wrongfully entered the said premises and unlawfully and against plaintiff’s will removed and carried away a portion of the fixtures belonging to the said store to the damage and '-inconvenience of the plaintiff, and to the detriment of his business as a baker.”
The third, fourth and fifth paragraphs set forth four separate and distinct trespasses, consisting of wrongful entry and detainer, at as many distinct and separate times, viz.: December 16th, December 18th, December 20th and January 3d.
Julius Klamke, for resp’t; Magner & Hughes, for app’lt.
This is an appeal from an interlocutory judgment in favor of plaintiff on a demurrer interposed by the de-’ fendant.
The defendant demurred on two grounds: First. That the facts stated did not constitute a cause of action. This was abandoned for it had no foundation in law. The defendant presses the second ground of demurrer, that causes of action were improperly united, in that paragraph two of the complaint sets up a cause of action for damages for injuries to personal property, while in paragraphs three, four and five thereof three causes of action arising at different times are set up for trespass upon the same premises. We think the defendant’s construction of paragraph two of the complaint is erroneous. It is plain that the pleader has in one form in that paragraph set up a cause of action for trespass upon land and pleaded special damages for injuries to fixtures done by the trespass. Such damages are recoverable in an action for trespass upon land. Sedgwick on Damages, 8th ed., §§ 943, 944.
There is no contention that four causes of action for trespass upon the same premises by the defendant at different times can not be united in the same action under Code Civ. Pro., § 484.
Judgment must be affirmed, with costs.
Clement, Ch. J., concurs.