Perkins v. Slocum

MAYHAM, P. J. The complaint, in the first count, charges the defendant, personally, with a wrongful conversion of certain personal property belonging to the plaintiff, and to the immediate possession of which she is entitled. The second count charges that the defendant as receiver appointed by the court in an action in the supreme court, in substance, took possession of the same property described in the first count in such complaint, and, after demand by plaintiff of him, wrongfully refused to deliver them to the plaintiff, but, as such receiver, converted them to his own use; and the plaintiff, by leave of the court, brings this action against him as receiver, as well as individually. To this complaint the defendant demurs on the ground of an improper joinder of two causes of action, and that several causes of action have been improperly united,—one against Henry W. Slocum individually, and one against him as receiver of the personal property of the Waverly Hotel. This demurrer was overruled by the trial court, and an interlocutory judgment entered against the defendant, from which the defendant appeals to this court. The only question on this appeal is whether the plaintiff, by her complaint, has improperly united two inconsistent causes of action. Subdivision 7 of section 488 of the Code of Civil Procedure specifies as a ground of demurrer “that causes of action have been improperly united.” Prior to the enactment of section 1815 of the Code of Civil Procedure, an action could not be maintained against an executor or administrator as an individual and in his representative capacity (Clark v. Coles, 50 How. Pr. 178), and a complaint charging him in such double capacity was held bad on demurrer. By that section, actions, under certain conditions, can be maintained against such individual, charging him in the double capacity. But it is only by the authority of that section that he may be sued in the same action as an individual and in his representative capacity. In a complaint like the one in case at bar, a judgment against defendant would furnish no guide in determining whether the defendant was personally liable, or liable as receiver; and yet in one case he would be personally charged as a wrongdoer, while in the other he would seem to be only liable as a trustee acting under the order of the court. But, whether that be so or not, it appears well settled by authority that the causes of action in this case are improperly joined. In Wiles v. Suydam, 64 N. Y. 177, it was held that a complaint setting forth facts sufficient, and seeking to charge the defendant, as a stockholder of a manufacturing corporation organized under gen 476 eral laws (chapter 40, Laws 1848), with a debt of the corporation, because of a failure to make and record a certificate required by section 10 of that act, and also alleging the requisite- facts, and seeking to charge him as trustee with the debt because of failure to file an annual report under section 12 of the same act, constitutes two separate and distinct causes of action, which cannot properly be united in the same complaint, and the court of appeals sustained a demurrer for that reason. And it seems that a demurrer is proper, irrespective of whether the causes of action are separately stated, or commingled. Harris v. Eldridge, 5 Abb. N. C. 278. It is true that section 484 of the Code of Civil Procedure allows two or more causes of action to be united in the same complaint, when they arise out of the same transaction; but it must appear that they all belong to one of the subdivisions of that section, and that they are consistent with each other. As we have seen, the causes of action, in this case, are not consistent with each other, as they would require different forms of judgment, and different forms of final process for their enforcement. Clark v. Coles, 50 How. Pr. 178; Landau v. Levy, 1 Abb. Pr. 376. The interlocutory judgment should be reversed, and judgment for the defendant ordered on demurrer, with leave to the plaintiff to amend on payment of the costs of this appeal. All concur.