Cohen v. Jarecky — 70 N.Y. St. Rep. 601

Majority

p. 601

Max Cohen, as Administrator, etc., Resp’t, v. Herman Jarecky Impleaded, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed November 15, 1895.)

Headnote

Pleading—Complaint—Causes separately stated.

Where the causes of action alleged in a complaint are not identical, the defendant is entitled to have them separated in such manner as to raise the question of misjoinder or sufficiency by demurrer.

p. 602

Appeal from an order denying a motion to make complaint more definite.

A. L. Fromme, for app’lt; A. Levy, for xesp’t.

This action was brought to recover damages against two of the defendants as druggists, and one of the defendants as a physician. The allegation of complaint is that the defendant Jarecky was employed as a physician, and that the defendants prescribed, prepared, compounded, and furnished a certain medical preparation or medicine to be administered to the ■deceased, and which was by the direction of the defendants administered to the deceased, and that the defendants so negligently prescribed, prepared and compounded such medicine as to mix therewith a certain deadly poison, unknown to either deceased or his parents, and defendants, knowing that such medicine was to be administered to an infant of tender years, did carelessly, negligently, and wrongfully prepare a certain mixture containing a deadly poison, fatal to human life, and did negligently and wrongfully direct, order, and prescribe that the same be administered to .said deceased. It is not alleged in the complaint that the defendant druggists had anything to do with the formulation of the prescription. Their sole dereliction, if any, was in the preparation and composition of the prescription. It is alleged apparently that the defendant physician participated in the preparation and compounding of the prescription, yet it is not certain that it was the intention of the pleaded so to allege. It is clear, however, that no cause of action is alleged against the druggists for negligence in the formulation of the prescription, and they have no concern with any liability which the defendant physician may be under because of such negligence, if it existed. Consequently, the causes of action against the defendants are not identical, and the defendants are entitled to have them separated in such manner as to raise the question of misjoinder or sufficiency by demurrer.

The order should be reversed, with $10 costs and disbursements and the motion granted to make the complaint more definite and certain, with $10 costs to the separate appellants..

All concur.