Ehle v. Haller — 19 N.Y. Super. Ct. 661

Majority

p. 661

John H. Ehle, Plaintiff and Appellant, v. Peter Haller, Defendant and Respondent.

Headnote

1. On an appeal from an order sustaining a demurrer to the complaint, the objection that the order does not conform, in its terms, to the decision actually made, cannot be considered.

2. ÍTor can the objection that the demurrer is not signed by the party, nor by any attorney as attorney, be regarded.

3. A complaint, stating breaches of a defendant’s written contract to sell and convey real estate to the plaintiff, and an assault and battery subsequently committed on the plaintiff in forcibly taking said contract from his possession, is bad on demurrer. It unites several causes of action that cannot be included in one suit.

(Before Bosworth, Ch. J., Hoffman, Woodruff, Pierrepont, and Moncrief, J. J.)

Heard, December —, 1859;

decided, January 7th, 1860.

Appeal from an order made November 17, 1859, by Mr. Justice Pierrepont, sustaining a demurrer to the complaint, with leave to amend the complaint in twenty days, on payment of costs.

p. 662

The complaint states, that on the 28th day of January, 1859, the defendant executed and delivered to the plaintiff a contract or articles of agreement, which bore date the 26th day of January, 1859, and was duly sealed and signed by the defendant as party of the first part thereto, and by the plaintiff as party of the second part thereto.

That in and by the terms of said articles of agreement the defendant agreed to sell and convey to the plaintiff a certain lot of ground with the appurtenances thereto, situated on the easterly side of Kinth avenue between Thirty-ninth and Fortieth streets, known as Ko. 482 Kinth avenue, in the city of Kew York, to contain twenty-five feet front on Kinth avenue, extending twenty-five feet in breadth or width to the rear of the lot one hundred feet in depth, for the sum of $8,000. And that the plaintiff should have the use of all the upper part of the house above the blacksmith shop in the basement, from the date of the said articles of agreement. And that the plaintiff should have the privilege of building on the front and rear of the said lot, and a right of access with building materials through the blacksmith shop to the rear of the lot from the time of the execution and delivery of the said articles of agreement, until the 1st day of April, 1859, on which day the defendant should convey by warranty deed, and deliver the whole of said property and premises to the plaintiff or his assigns, on the 1st day of April, 1859. After stating the provisions of the contract as to the payment of the purchase-money, the complaint avers, “ that immediately after the said articles were executed and delivered by the respective parties thereto, the defendant caused certain fixtures, parts of partitions, and a second floor over the floor in the store, to be severed and removed from the premises, which were a part of the real estate sold and to be conveyed to the plaintiff. And that the defendant immediately proceeded to occupy the store on said premises as a workshop and for the purpose of shoeing horses, by means whereof the said property and premises were damaged and of less value to the plaintiff. And the defendant let and rented the whole upper part of the house, and received the use thereof in violation of the said'articles of agreement. And plaintiff further says, that since the execution and delivery of the said articles of agreement, he has been to great cost and ex

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penses in making preparations to build a first class house on said lot, twenty-five feet front on Ninth avenue, by ninety feet deep, with a basement the whole size of the house and vaults under the sidewalk in front, and incurred liabilities amounting to more than $2,000 towards the construction and erection and building such house on said premises, with the intention of having the said house fully completed by the 1st day of May, 1859, relying wholly on receiving a good conveyance and title to the said premises from the said defendant pursuant to the said articles of agreement.

“ And the plaintiff further says, that, on the evening of the 14th February last, the defendant falsely and fraudulently induced and decoyed the plaintiff to his (the defendant’s) residence in said city for the purpose of robbing plaintiff of said articles of agreement, and then and there committing violence on the person of the plaintiff; and that the said defendant did, then and there, on the night of the 14th February, 1859, commit a violent assault on the person of the plaintiff, by forcibly taking from the person of the plaintiff, against his will and in opposition to all physical resistance on the part of the plaintiff, the aforesaid articles of agreement.

“ And the defendant, then and there, with threatening gestures, placed himself in a striking attitude towards the plaintiff, and threatened to strike the plaintiff in his (the defendant’s) own house, á,nd stated, at the same time, that the plaintiff should do nothing more on the said premises under the said articles of agreement. And the plaintiff further says, that the defendant has ever since prevented, hindered and deprived the plaintiff of the benefits of the said property and premises aforesaid, in violation of the said articles of agreement, and also prevented the plaintiff from proceeding with the building of such house on said premises, in" violation of the aforesaid articles of agreement.

“ And the plaintiff farther says, on his information and belief, that, by means of the wrongful acts of the defendant in the premises as aforesaid, he (the plaintiff) has sustained damage to the amount of two thousand dollars.

“Wherefore, the plaintiff demands judgment against the defendant for two thousand dollars damages, besides the costs of this action.’’

p. 664

The demurrer specifies, as grounds of demurrer,

1st. That several causes of action have been improperly united.

2d. That the cause of action for damages for not fulfilling the contract set forth in the complaint is improperly united with the cause of action for assaulting the plaintiff and forcing him to give up said contract.

3d. That the cause of action for withholding possession of the premises mentioned in said contract is improperly united with other causes of action stated in said complaint.

4th. That several causes of action are stated in said complaint, but are mingled together, and not separately stated.

5th. That causes of action inconsistent with each other are united in said complaint.

6th. That a cause of action for damages for breach of contract to convey real estate is improperly united with a cause of action for withholding the possession of said real estate, and other causes of action for converting and carrying away a part of such real estate.

7th. That the complaint does not state facts sufficient to constitute a cause of action.

8th. That a cause of action upon contract is improperly united with causes of action for torts.

The' demurrer is signed “ Taber & Reavey, No. 31 Insurance Buildings, No. 51 Wall street.” The order appealed from recites that it was made after hearing A. H. Reavey, Esq., of counsel for the defendant.

John H. Ehle, the appellant (in person) insisted,

1st. The demurrer is bad, because it is not signed by the defendant or by Taber & Reavey, as attorneys for defendant; but is signed “ Taber & Reavey, No. 31 Insurance Buildings, No. 51 Wall street.”

2d. The demurrer in this case was sustained on the second ground and cause of demurrer, specified in the defendant’s demurrer, and was so decided by the Court on the 16th day of November last without awarding costs on such demurrer, and was so entered by the clerk of the Court in his minutes and order book, as the decision of the Court on the demurrer in this cause.

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3d. The order entered in this cause from which this appeal is taken, should be reversed on the ground: That the addition, of the payment of costs by the plaintiff to the defendant, was made some time after the cause had been decided by the Court, and such decision had been entered by the clerk in the minutes and order book as the decision on the demurrer in this cause without any costs being allowed or awarded by the Court on such decision.

4th. The order appealed from in this case should be reversed, and judgment ordered for the plaintiff in this complaint in this action. Nothing appears in the complaint to sustain the defendant’s second cause or ground of demurrer.

5th. The matters of contract stated in the plaintiff’s complaint, are stated as inducement to the action of tort, which is stated in a subsequent part of the complaint, and are necessary and proper to base the plaintiff’s action of tort upon.

“ Matters of contract are proper to be stated in the complaint as inducement to an action of tort.” Ridder v. Whitlock, (12 How. Pr. R., p. 208,) and cases there cited.

6th. All the statements in the plaintiff’s complaint are necessary and material. 1st. To show the defendant’s motive in committing such tortious acts: 2d. To show that the wrongful acts of the defendant and that all the plaintiff’s damage resulting from such acts, originated in the same transactions connected with the same subject of action, and are not subject to demurrer. (1st and 3d subd. of § 167, of the Code; Badger v. Benedict, 4 Abb. Pr. R., 176.)

7th. The defendant’s remedy to correct the complaint is by motion, demurrer will not lie for not separately stating causes of action, they being such as might be united. (4 Abb. Pr. R., 176; id., 202; Waller v. Raskan, 12 How. Pr. R., 28; Moore v. Smith, 10 id., 361; 9 id., 336; Robison v. Judd, id., 378; id., 129; 11 id., 408; 12 id., 28; 2 Abb. Pr. R., 482; 4 id., 176.)

8th. The plaintiff’s complaint in this case is limited to a recovery in trespass for the damages sustained in consequence of the wrongful acts of the defendant, by the prayer in the complaint, and thereby plainly designated that there is no cause of action on contract in the complaint.

“It is the judgment asked for by the complaint, that determines to which subdivision the action belongs.” (Spalding v.

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Spalding, 3 How. Pr. R., 297; Dows v. Green, id., 377; Hulce v. Thompson, 9 id., 113; Ehle v. Bingham, 8 Barb., 494 .)

9th. The defendant’s demurrer to the entire complaint in this action is bad, and inconsistent with the several grounds of demurrer, and the several causes and grounds of demurrer are not consistent with each other. “But none of the defendant’s grounds of demurrer, that several causes of action have been improperly united appear in the complaint, and if several causes of action appeared in the complaint, the demurrer to the entire complaint must be overruled. The defendant must state the cause or causes of action, demurred to, and the grounds of the demurrer.” (Gleason v. Moen, 2 Duer, 639 .)

10th. The demurrer in this case was interposed for delay to pass the cause off, over last June Term, and has effectually delayed and prevented the plaintiff from proceeding with this action until this time, and plaintiff respectfully submits to the appellate Court, that the order appealed from in this case should be reversed, and the defendant’s demurrer to the plaintiff’s complaint in this action should be overruled, and judgment ordered for the plaintiff, with costs.

A. H. Reavey, for respondent (the defendant).

This is an appeal from an order of Mr. Justice Pierrepont, sustaining a demurrer to the complaint, with leave to the plaintiff to amend within twenty days, upon payment of costs.

The objection that the demurrer was not signed by the defendant, nor by Taber & Reavey as his attorneys, is not a ground for reversing the order. If the paper was defective it should have been returned to those who sent it, with a memorandum of the defect to the end that it might be corrected. Again, the objection should have been made and passed upon at Special Term.

The persons, whose names are signed to it, are attorneys of this Court, and as such, appeared and argued the demurrer below, without any objection being made that can be ascertained from the papers furnished upon this appeal.

The suggestion that the decision of the Court below was entered in the minutes of the clerk different in terms from the order

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appealed from, may be dismissed with the remark, that the Court cannot, on this argument, go behind the order as entered and appealed from. If the order did not conform to the decision of the Justice, application should have been made to resettle and correct it.

The complaint, after setting forth a contract to sell certain lands under date of 26th January, 1859, alleges,

1. That the defendant caused certain fixtures, parts of partitions, and a second floor to be severed and removed from the premises which were a part of the real estate sold, and to be conveyed to the plaintiff.

2. That defendant proceeded to occupy the store in said premises as a workshop, and for the purpose of shoeing horses; by means whereof, the said premises and property were damaged and rendered of less value to the plaintiff.

3. That the defendant let and rented the whole upper part of the house, and received the use thereof, in violation of said articles of agreement.

4. That the defendant prevented, hindered and deprived plaintiff of benefits of said property and premises aforesaid, in violation of said articles of agreement.

5. That the defendant prevented plaintiff from proceeding to build a house on said premises, in violation of said articles of agreement.

The plaintiff contends that the foregoing averments are proper, and necessary in a statement of the cause of action founded upon the allegation that the defendant, on the night of the 14th of February, 1859, committed a violent assault on the person of the plaintiff, and took from him the aforesaid agreement.

If any, the only proper inducement, in an action of assault and battery, under the former system of pleading was an averment of the right of personal security, &c.; but it was thought none was necessary. (1 Chitty on Pleadings, 411.)

The Code authorizes a party to state the whole of any one transaction out of or upon which a right of action arises. It was so held by Harris, J., in Brewer v. Temple, ( 15 How., 287 ,) where the demurrer to a complaint averring slander and assault and battery occurring at the same time, each being ■ part of the res gestee, was overruled.

p. 668

The matters alleged in the present complaint, however, are not the history of one occurrence, and no more. The complaint contains a narrative of several separate and distinct matters occurring at different times, and constituting several distinct causes of action.

The plaintiff avers that, “by means of the wrongful acts of the defendant in the premises as aforesaid, the plaintiff has sustained damage to the amount of two thousand dollars,” and asks judgment for those damages.

The prayer of the complaint, therefore, has equal reference to all the matters set forth, and would permit the plaintiff to recover upon proving either of them—the breach of the contract to convey ; the removal of part of the property included in the contract; or for letting and renting the whole upper part of the house and receiving the use thereof; or for the assault and battery.

Such causes of action, in my opinion, cannot be united: they are not all parts of one transaction, nor are they of the same family, belonging to any one specified class.

The complaint, improperly uniting several distinct causes of action, is demurrable. (Amended Code, § 144.) The decision at the Special Term was correct; and the order appealed from should be affirmed, with costs.

Order affirmed.