Cleghorn v. Cleghorn — 61 N.Y. St. Rep. 4

Majority

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Edith M. Cleghorn, App’lt, v. Jennie Cleghorn et al., Resp’ts.

(Supreme Court, General Term, Fifth Department,

Filed June 20, 1894.)

Headnote

1. Trial—Decision—Demurrers.

A decision, which fails to state the ground upon which demurrers are sustained, is in proper form, notwithstanding such omission.

2. Pleadings—Demurrer—Misjoinder.

A misjoinder exists, where not one of the defendants is interested in all the causes of action stated in the complaint.

Appeal from an interlocutory judgment sustaining demurrers to the complaint.

Henry M. Davis, for app’lt; E. C. Hart, for resp’t O’Connor; S. Wallace Dempsey, for resp’t Keough ; Charles Hickey, for resp’t Spaulding.

The decision of the court sustaining the demurrers was handed to the clerk, and filed by him, during the sitting of the court. The plaintiff, laboring under the erroneous impression that the decision had not been made and filed within twenty days after the final adjournment of the court, made a motion, for that reason, for a new trial, under § 1010 of the Code of Civil Procedure. Another alleged error upon which the plaintiff relied was that the court’s decision failed to state the grounds upon which

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the demurrers were sustained. It was, notwithstanding such omission, in proper form. Eaton v. Wells, 82 N. Y. 576 ; Wood v. Lary, 124 Id. 83; 35 St. Rep. 53 . The plaintiff’s motions were properly denied,

She also appeals from an interlocutory judgment which was entered upon the decision of the demurrers. The complaint is quite a remarkable one. It attempts to state a cause of action for partition, as against some of the defendants; as to others, it is an action in ejectment; as to others, for an accounting as to the rents, issues, and profits of real estate. It seeks to determine the rights in real estate, as between the plaintiff and some of the defendants, and again it seeks to remove alleged clouds upon the title to the land. It is quite clear that there is an improper joinder of causes of action. None of the defendants appear to be interested in all of the causes of action stated in the complaint. The demurring defendants are each severally interested in but one of the several causes of action. We are inclined to the opinion that the complaint fails to state a cause of action against any of the defendants.

The judgment and orders appealed from should be affirmed, with costs of the appeal from the judgment, but with leave to the plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

All concur.

Cases cited

Eaton v. Wells 82 N. Y. 576 N.Y. 1880-11-16 p. 5