Teall v. City of Syracuse

Haubin, J.: Two causes of action are stated in the complaint. The first cause of action is for wrongfully taking and converting, certain personal property lately belonging to the Onondaga County Bank, of the value of $3,200, with a claim for damages in that same sum and interest, “ by reason of the seizing and sale of said property under and by such direction and procurement as aforesaid of the defendant the city of Syracuse.” The second cause of action is for money had and received, the complaint alleging that on the 25th day of [333] April, 1874, “the city of Syracuse received into its treasury and appropriated to its use the sum of eight hundred and seventy-four dollars the same being the proceeds of the sale of certain goods and chattels of and belonging to the Onondaga County Bank, being the same goods and chattels mentioned in the first count herein; before then wrongfully and without authority of law seized and taken and sold at public auction by said city of Syracuse its agents and officers, -x- * * whereby the said city of Syracuse became liable to pay into the said Onondaga County Bank the said sum of eight hundred and seventy-four dollars, with interest,” etc. Each count alleged an assignment of the cause of action to the plaintiff, and that each is “ owned by the plaintiff:” The first cause of action is in tort for wrongfully converting the property by means of a wrongful seizure and sale thereof. The second cause of action is for the proceeds of thfe sale of the property, and the right to recover rests upon an implied promise, or contract to pay, the tort being waived. (Hawk v. Thorn, 54 Barb., 168; Osborn v. Bell, 5 Denio, 370.) Prior to the present Code, two such causes of action could not be united in the samé complaint. (Code of Procedure, § 167; Hubbell v. Meigs, 50 N. Y., 487; Booth v. F. and M. Bk., 65 Barb., 457; Sweet v. Ingerson, 12 How., 331; Cobb v. Dows, 9 Barb., 230; Hunter v. Powell, 15 How., 221; Colwell v. N. Y. and Erie R. R. Co., 9 id., 311; Springstead v. Lawson, 23 id., 302; McDonald v. Kountze, 58 id., 152; Thompson v. St. Nicholas Bank, 61 id., 163; Keep v. Kaufman, 56 N. Y., 332.) We think section 484 of the Code of Civil Procedure has not changed the rule. That section provides: “ It must appear upon the face of the complaint that all the causes of action so united belong to one of the foregoing subdivisions of this section.” The complaint does not make it appear that both causes of action belong to one of the classifications named in the section. The learned counsel for the respondent in his brief concedes that the “ first count is in tort for the wrongful conversion of the property; the second count is upon an implied contract to pay over the money wrongfully received as the result of the conversion. The first belongs to the sixth class of causes of actions mentioned in section 484 of the Code, and the second to the first class.” ■ He then insists these causes of action can be united in virtue of th'e ninth subdivision of section 484. [334] That subdivision, reads, viz.: “ Upon claims arising out of tbe same transaction, or transactions connected with tbe same subject of action, a/nd not included witbin one of .tbe foregoing subdivisions of tbis section.” 'It seems to us tbat taking tbe plaintiff’s confession as true, as we have no doubt it is, that the ninth subdivision does not aid tbe respondent. Because it is clear that tbe two causes of action are included in one of tbe four subdivisions ; and secondly, because it does not appear tbat “ all of tbe causes of action ” belong to one of tbe foregoing'subdivisions. In Lattin v. M'Carty (41 N. Y., 112), tbe action was one in equity, to assert a fraud in obtaining a deed, and to strike it down and procure a return of the title to tbe plaintiff, where, but for tbe fraud of tbe defendant, it would have vested. As Hunt, Cb. J., said in that case : “ Both claims are harmonious and consistent with each other. They arise out of tbe same transaction, or certainly out of transactions connected with the same subject of action.” In tbe case in band there can be but one claim or recovery. If it is in tort, the right to recover is because of tbe wrong. If in contract, it is because tbe wrong is waived, and the plaintiff stands upon the contract which tbe law implied, after tbe waiver takes place. A recovery in tort would bar the action upon tbe contract and vice versa. Here there is an averment of distinct causes of action, one in tort, tbe other in contract. Tbe section referred to has not authorized such a union of causes of action, as presented by the complaint. (Flynn v. Bailey, 50 Barb., 77.) Tbe order and judgment thereon of tbe Special Term should be reversed, with costs and disbursements of this appeal, and judgment ordered for tbe defendant upon tbe demurrer, with costs, and leave granted to the plaintiff to amend upon payment of the costs of tbis appeal and costs of tbe demurrer. BARKER, J., concurred; Smith, P. J., not voting. So ordered.