Whatling v. Nash — 5 N.Y. St. Rep. 189

Majority

p. 189

John Whatling, Resp’t, v. William Nash, Appl’t.

(Supreme Court, General Term, Fifth Department,

Filed October, 1886).

Headnote

Complaint — Joinder of — Causes of action — What not impbopebly UNITED IN COMPLAINT.

A complaint set forth, two causes of action, one for wrongful entry upon plaintiff’s land under water, and wrongfully taking and carrying away fish therefrom, the other for a like entry on plaintiff’s land and catching and killing muskrats thereon. Upon demurrer thereto, on the ground that the causes of action were improperly united. Field, the allegations of injuries to personal property were not state Lents of separate causes of action, but mere averments in aggravation of the wrongful entry.

Appeal from a judgment of tbe Monroe special term overruling a demurrer to the complaint.

D. L. Covill, for appl’t; W B. Crittenden, for resp’ts.

Tbe grounds assigned for tbe demurrer are, tbat several causes of action are improperly united, and that tbe complaint does not state facts sufficient to constitute a cause of action. Tbe latter ground is not argued by the appellant’s counsel in the brief. submitted to us, and it is quite clear tbat there is no foundation for it in tbe complaint.

As to the first ground, it is true that tbe complaint sets forth two distinct causes of action, but they are such as may properly be joined in one complaint, as they are both for alleged injuries to real property. One is for a wrongful entry upon plaintiff’s land under water, about April or May, 1881, and wrongfully taking and carrying away fish therefrom; the other, for a like entry on plaintiff’s land, in the year 1882, and catching and killing muskrats thereon. The allegations of injuries to personal property are not, as the appellant’s counsel seems to suppose, statements of separate causes of action, but are mere averments in aggravation of the wrongful entry. ( Van Leuven v. Lyke, 1 Comst., 515; Howe v. Willson, 1 Den., 181 ; Dunckle v. Kocker, 11 Barb., 387 ; Clark v. Van Vrancken, 20 Barb., 278 ; Gilbert v. Pritchard, decided in this department in June, 1886: MSS. op. of Smith, P. J.)

The question whether the two causes of action for trespass quare clausum, should be stated in separate counts and separately numbered is not before us.

The judgment should be affirmed with costs, with leave to the defendant to withdraw the demurrer and answer the complaint, within twenty days, etc., on payment of the costs of this appeal and of the demurrer.

Barkee, Haight and Bradley, JJ., concur.

So ordered.