Adams v. Stevens

PBTOB, J. In an action by an attorney for professional services the defendants jointly demur to the complaint for misjoinder of causes of action, in that the two alleged causes of action do not affect both defendants. If the complaint in an action against two defendant states facts showing a cause of action against each separately, but not a cause of action against both jointly, the defendants may demur jointly on the ground of the misjoinder of causes of 994 action (Hess v. Railroad Co., 29 Barb. 39); and the demurrer is not obviated by the fact that the several causes of action are indistinguishably blended in a single count or complaint (Goldberg v. Utley, 60 N. Y. 427; Wiles v. Suydam, 64 N. Y. 173; Harris v. Eldridge, 5 Abb. N. C. 278; Zorn v. Zorn, 38 Hun, 67). By section 484 of the Code of Civil Procedure, the plaintiff may unite in the complaint two or more causes of action on contract, “where they affect all the parties to the action.” Nichols v. Drew, 94 N. Y. 22, 26. The question for decision is whether two causes be apparent upon the complaint, and, if so, whether they affect both defendants. That two causes of action áre stated in complaint is manifest beyond doubt. One cause of action is against the defendant Stevens, and. it arises on her retainer of the plaintiff in March or April. The other cause of action is' against the defendant Rankin, and it arises on his subsequent and independent retainer of the plaintiff. True, Rankin’s retainer of the plaintiff was, if you please, by ratification of Stevens’ previous retainer of the plaintiff; but, all the same, it is Rankin’s contract that constitutes the basis of his obligation. True, too, that the services which- plaintiff was to render on Rankin’s retainer were in respect, if you please, of the same subject-matter •of litigation for which Stevens retained Rankin; but then this subject-matter had been assigned by Stevens to Rankin, and so, after all, plaintiff’s services were for the benefit of Rankin, and in pursuance of his retainer. But in truth the services rendered by plaintiff to Stevens were in and about the recovery of certain securities, stocks, and other property; and the services rendered to Rankin were in and about the recovery of different stocks, securities, and property, which became his by assignment from Stevens. It is •open to plausible conjecture that Mrs. Stevens simply substituted Rankin in the litigation as her agent during her sojourn in Europe, but the complaint asserts a right of action against Rankin, and I am only to decide whether, on the face of the pleading, such cause of action affects the defendant Stevens. Higgins v. Critchton, 11 Daly, 114. I cannot perceive how, by any possibility, Stevens is concerned in a claim by plaintiff against Rankin for services rendered on his retainer and for his benefit. Still clearer is it that Rankin has no conceivable concern in plaintiff’s claim against Stevens for services rendered to her upon her retainer, and before Rankin succeeded to any interest in the subject-matter of those services. The case is not of a joint or mutual interest between Stevens and Rankin in the subject-matter and the services, but of successive and separate interests in the subject-matter and the services. A joint liability is the effect of a joint obligation. Raft Co. v. Roach, 97 N. Y. 378, 382. The conclusion upon the reason of the case is sustained by authority. Tibbits v. Percy, 24 Barb. 39, 42; Brewster v. Silence, 8 N. Y. 207, 215; Hess v. Railroad Co., 29 Barb. 391, 394; Kelly v. Newman, 62 How. Pr. 156; Taylor v. Railway Co., 53 Hun, 305, 6 N. Y. Supp. 488; Pracht v. Ritter, 48 N. Y. Super. Ct. 509; Barton v. Speis, 5 Hun, 60; De Caumont v. Morgan, 21 Wkly. Dig. 357; Gray v. Rothschild, 112 N. Y. 668, 19 N. E. 847; Church v. Stanton, 9 N. Y. St. Rep. 121; Bort v. Yaw, 46 Iowa, 323; Johnson 995 v. Kirby, 05 Cal. 482, 4 Pac. 458; Doan v. Holly, 25 Mo. 357. I observe nothing inconsistent in plaintiff’s citations. Of course, the infirmity in the pleading is not repaired by the formal allegation of a joint and several indebtedness. Abb. Tr. Brief, 238. Demurrer sustained, with direction to divide the action.