McKenzie v. Hatton

Headnote

Pleadings—Demurrer—Misjoinder.

Demurrer for misjoinder of causes of action lies if each cause of actioa does not affect all the parties.

Appeal from interlocutory judgment overruling demurrer to the complaint for insufficiency in substance and misjoinder of . causes of action. The complaint, so far as material, is as follows:

“Sixth.—Also, upon information and belief, that the plaintiffs allege that the said defendant, Goldenberg, and the defendants, Michael Larkin and James J. Larkin, copartners, doing business under the firm name and style of M. Larkin & Son, as aforesaid, the agents, servants, contractors or employes of the said defendant, Simon Goldenberg, and their agents, servants, contractors and employees, wrongfully, negligently and unlawfully, and although licensed to enter upon the aforesaid building or premises of these plaintiffs, was duly tendered or given by these plaintiffs on their, part to the said defendants, Goldenberg and Larkin, said defendants-, against the laws of this commonwealth, to wit, in violation of § 474 of chapter 410 of the Laws of 1882 of the state of New York, excavated the land adjacent to the plaintiffs’ said land, and took away the soil therefrom to the depth of twenty-four feet or thereabouts, without leaving proper and safé support for the said land and the building belonging to the plaintiffs, and wrongfully, negligently and unlawfully entered upon the building or premises of these plaintiffs and drove certain needles into the wall of said plaintiffs’ building without the permission, knowledge or consent of the said plaintiffs, and the defendants having wrongfully, negligently and unlawfully committed the acts above named failed"to supply temporary and safe support to the plaintiffs’ land and building as aforesaid, and all in violation of the laws of this commonwealth, to wit: § 474 of chapter 41Q of the Laws of 1882. Seventh.—The defendant Loftus X>. Hatton is and at all the times hereinafter mentioned was in occupation at the said plaintiffs’ lot and building aforesaid as a tenant of the said plaintiffs under a lease from said plaintiffs beáring date April 7, 1892, for the term of three years from May 1st, 1892,. and as such tenant it was the duty of the said' Loftus D. Hatton on his part to give the said defendant Simon Goldenberg and the defendants Michael Larkin and James J. Larkin, copartners as aforesaid, and the agents, servants and employees of the said defendant Goldenberg and the defendants Michael Larkin and James J. Larkin, or either or both of them, full and free permission or license to enter upon the said premises, Ho. 35 West 4th street, belonging to these plaintiffs and in possession of the said defendant, Loftus D. Hatton, as tenant of the said plaintiffs as aforesaid, upon due application being made to him for permission so to do, in order that the said defendants, Goldenberg and Michael Larkin and James J. Larkin, copartners as aforesaid, arid either or both of them, might properly, safely and securely shore up said wall of the said building, 35 West Fourth street, when the said defendants or either or both of them excavated the land adjacent to the said plaintiffs’ land and took away the soil thereof as aforesajd ; and that the said defendant Hatton, wrongfully, negligently and unlawfully refused such permission or license as aforesaid to the said defendant, Simon Goldenberg, and the defendants, Michael Larkin and James J. Larkin, copart

nets as aforesaid, or either or both of them, and to their agents, servants and employees, or the agents, servants and employees of either or both of them, so to enter upon the said premises, No. 36 West Fourth street, and properly shore up and protect the said plaintiffs’ wall and building thereon, and otherwise interfered with, hindered and obstructed the said defendant, Simon Golden-berg, a^-d the defendants, Michael Larkin and James J. Larkin, coparte 3rs as aforesaid, or either or both of them, and their agents, servants and employees, and the agents, servants and employees, or both of them, in their work of shoring up and protecting the „ plaintiffs’ wall and building thereon of the premises, No. 35 West Fourth street, in the city of New York, as aforesaid, and to a certain extent preventing said defendants, Simon Goldenberg and Michael Larkin and James J. Larkin, copartners as aforesaid, from properly shoring up the said wall, and thereby contributed to the injuries sustained, herein set forth.”