Hubbell v. . Lerch

Rapallo, J. The complaint is so framed as to show that if one of the plaintiffs has a cause of action the other cannot have one. Both plaintiffs unite in stating, in one part of the complaint, that the plaintiff Alrick Hubbell is seized, in his own sole right, of an estate in fee in the premises in question as assign of the heirs at law of Alfred Hubbell, deceased, who died seized as is alleged. The same plaintiffs, in a subsequent part of the complaint, unite in declaring that Alfred Hubbell, in his lifetime, conveyed the premises, upon a valid trust, to Medbery and Smith, of whom the plaintiff Alfred S. Hubbell is the successor. If the complaint is to be regarded as containing only one count it is felo de se and shows no right of action in either plaintiff. Alrick Hub-bell’s claim as assign of the heirs at law of Alfred Hubbell, deceased, is shown to be unfounded by the subsequent statement, in which Alrick unites, that Alfred Hubbell, in his lifetime, conveyed the property to Medbery and Smith; and the claim of Alfred S. Hubbell, as successor to Medbery and Smith, is neutralized by the statement, in which he unites, that, in the year 1853, Alfred Hubbell died seized and possessed of the property in dispute. Each plaintiff therefore, *241 in the same breath, states facts showing that he is and that he is not entitled to recover. Such a complaint fails to show a cause of action in either plaintiff. The allegation that each of the plaintiffs is under the conveyances, proceedings, etc., the owner in fee and entitled to the possession of the property described in the complaint, for the use of the plaintiff Alrick Hubbell, is as stated in the opinion of Johnson, J., at General Term, a mere legal conclusion and not a statement of fact. It is also a legal impossibility. Ho interest in common is anywhere shown. The title of each plaintiff is hostile to that of the other. Both cannot be entitled to recover. There is no allegation that the debts provided, for by the assignment to Medbery and Smith have been paid or discharged, or that the purposes of the trust have ceased. The facts stated show that if one of the plaintiffs is entitled to the possession the other is not; and if no answer were interposed, the court would be unable to determine which plaintiff was entitled to judgment. If the complaint is to be regarded as containing two counts or statements of causes of action, then it is equally defective for the reasons stated in the opinion of Johnson, J. Section 167 of the Code, which declares what causes of action may be united, expressly requires that (except in actions for the foreclosure of mortgages) the causes of action so united must affect all the parties to the action. This does not permit two persons, each of whom claims the whole of a piece of land by a title hostile to that of the other, to unite as plaintiffs in an action of ejectment against a third party who may be in possession, and to set forth the title of each plaintiff in a separate count. It is claimed that this form of pleading in ejectment is sanctioned by the Revised Statutes (§ 11, tit. 1, chap. 5, pt. 3) which permits several parties to be named as plaintiffs jointly in one count and separately in others. Even if that section were now in force it would not sustain the present complaint, for it contains no allegation of a joint title in the plaintiffs. But, I think, it can hardly be ques *242 tioned that the rules governing the joinder of causes of action are now to be found in the' Code and not in the Revised Statutes, and that section 167 of the Code is applicable to actions of ejectment as well as to other actions, for subdivision 5 of that section expressly includes u claims to recover real property, with or without damages for withholding thereof, and- the rents and profits of the same.” For this reason as well as those stated in the opinion of Johnson, J., and those contained in St. John v. Pierce (22 Barb., 362; affirmed in this court, 26 How. Rr., 599), I am of opinion that if this complaint is to he regarded as setting forth several causes of action, they have been improperly united and the demurrer was properly sustained on that ground. In whichever way the language of the complaint is to be construed, whether as attempting to set forth two causes of action or one, I think the demurrer was properly sustained and that the judgment should be affirmed, with costs. All concur. Judgment affirmed.