Mahon v. Liscomb — 46 N.Y. St. Rep. 932

Majority

p. 932

Martin Mahon et al., Resp’ts, v. Alfred A. Liscomb, Impl’d, App’lt.

(New York Common Pleas, General Term,

Filed June 6, 1892.)

Headnote

Pleading—Complaint—Joinder of causes.

A complaint in an action against the vendors and auctioneer of property-sold at auction, alleging misrepresentations inducing plaintiffs to purchase, and asking judgment for the amount expended on such sale for deposit, fees, search and other disbursements, and as against the auctioneer the repayment of the deposit, is not demurrable as improperly uniting two causes of action, viz. : one against the auctioneer alone, and one for damages against the vendors. The vendees in such a case have a right of action against either, and a recovery upon either cause of action would include the deposit.

p. 933

Appeal by defendant, Alfred A. Liscornb, from an interlocutory judgment at special term overruling his demurrer to the complaint.

Charles Haldane, for app’lt; John M. Bowers, for resp’ts.

The defendant Smyth is a real estate auctioneer, and sold at public auction certain premises in this city for the other defendants, owners thereof. The plaintiffs purchased at the sale, and paid five per cent., or $3,492.50, in cash to the auctioneer, besides paying auctioneer’s and exchange salesroom fees, and making disbursements for searches, counsel fee and survey. They brought this action, alleging misrepresentations by the owners to induce the purchase ; also, that the premises were incumbered, and asking judgment for the amount so expended, and that the same be declared a specific lien upon the said premises. The relief asked against the defendant Smyth is the re-payment of the five per cent, received by him, and any interest he may have received thereon. The defendant Liscornb demurs on the ground (1), that plaintiffs have improperly united two causes of action, viz.: a cause of action existing against Smyth alone for the repayment of the $3,492.50, and the cause of action against the other defendants for damages arising from the alleged breach of the contract of sale and for false representations; (2) on the ground that the complaint does not state facts sufficient to constitute a cause of action.

If the complaint states two causes of action, they are (1) for damages for breach of contract to give title free from incumbrances ; (2) for damages for false representations inducing the sale. This is not, however, the defect specified in the demurrer. The Code provides that the demurrer must distinctly specify the objections to the complaint, and an objection that causes of action have been improperly united “ must point out specifically the particular defect relied upon.” Code, §| 490,488. If the pleading is not defective in the respects specifically pointed out in the demurrer, then the provisions of the Code are not complied with, and the demurrer may be disregarded, although other grounds of demurrer exist. Dodge v. Colby, 108 N. Y., 445 ; 13 St. Rep., 848 . The objection specified in the demurrer is that the claim for the repayment of the five per cent deposit is a cause of action against the auctioneer alone ; but this is not so. An action may be maintained against the auctioneer or against the vendors upon that demand. Cochcroft v. N. Y. & H. R. R. Co., 69 N. Y., 201 ; Cockcroft v. Muller, 71 id., 367. A recovery upon either cause of action stated in the complaint would include the amount of the deposit, and as the defendant Smyth does not demur to being joined as a defendant in this action the other defendants cannot complain.

The second ground of demurrer is not pressed.

The judgment must be affirmed.

Bischoef and Pryor, JJ., concur.