Brandt v. Siedler — 63 N.Y. St. Rep. 381

Majority

p. 381

William H. Brandt, Resp’t, v. Charles Siedler, Individuall and as Receiver, etc., App’lt.

(New YorTc City Court, General Term,

Mled November 20, 1894.)

Headnote

Pleadings—Demurrer.

A complaint, which charges a defendant with liability both as an individual and as a receiver for the same cause of action, is demurrable.

Appeal from an interlocutory judgment overruling a demurrer to the complaint.

Tillotson & Kent, for app’lt; George W. Carr, for resp’t.

The plaintiff, by his complaint, seeks to hold the defendant liable in a dual capacity,—First, as an individual; and, second, as receiver of the Lorillard Brick Works Company, —on causes of action wherein he is liable individually, if at all. Ryan v. Rand, 20 Abb. N. C. 314 ; 9 St. Rep. 523 . The defendant demurred to the complaint on the ground that there had been a misjoinder of causes of action, and for the reason that it was improper to thus join defendant as liable in both capacities in the same action. The court overruled the objection, and ordered judgment on the demurrer in favor of the plaintiff. This was error; so that the interlocutory judgment and order appealed from must be reversed, with costs, upon payment of which the plaintiff may have leave to amend by making the action one against the defendant individually or as receiver, at his option.

All concur.