
    Prospect Park and Coney Island Railroad Company and Others, Appellants, v. James E. Morey and Others, Respondents.
    Second Department,
    February 28, 1913.
    Real property—action by owners of distinct parcels of land to enjoin maintenance of several actions of ejectment — determination of claims to real property—joinder of parties plaintiff—equity — bill of peace — suit by one for benefit of others — multiplicity of actions — conspiracy.
    In an action by several plaintiffs it was alleged that each of them was the owner of certain adjoining tracts of land procured by separate conveyances but from the same original source; that they are now and that they and their immediate predecessors in title for more than 100 years have been in continued and exclusive possession of the land thus acquired, except as to a portion acquired by the city of New York; that the defendants have brought separate actions of ejectment against two of the plaintiffs which are now pending, have threatened to bring such an action against the other plaintiffs and have commenced actions against various other persons who have acquired property in the same manner as the plaintiffs; that the defendants have intervened in pending condemnation proceedings by the city of New York to acquire a portion of the lands of the plaintiffs; that the defendants’ only claim of title is through a certain deed which does not purport to convey any of the property belonging to plaintiffs and that said actions are brought by the defendants in bad faith. The plaintiffs ask that the deed upon which the defendants claim title be declared null and void; that it be adjudged that the defendants have no title to the premises owned by the plaintiffs and that the defendants be enjoined from asserting any title to such premises.
    Held, that a judgment in favor of the defendants sustaining a demurrer to the complaint should be affirmed, since such an action cannot be sustained under the statute providing for the determination of claims to real property nor may it be maintained as an equitable action in the nature of a bill of peace or to avoid a multiplicity of actions.
    Neither may it be treated as an action brought by oné or more plaintiffs for the benefit of others similarly situated, nor can it' be said that the plaintiffs have a common interest in the fund which will arise in the condemnation proceedings.
    Such an action cannot be sustained upon the ground that defendants have conspired to injure the plaintiffs.
    The plaintiffs are not so united in interest that they may join as parties in a single action.
    Appeal by the plaintiffs, Prospect Park and Coney Island Railroad Company and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 3d day of January, 1913, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      George W. Wingate, for the appellants.
    
      Huntington W. Merchant [W. E. Kisselburgh, Jr., and Albert A. Wray with him on the brief], for the respondents.
   Burr, J.:

Plaintiffs appeal from a final judgment sustaining a demurrer to the complaint. It is necessary for us to consider but two of the objections therein specified, namely, the failure to state facts sufficient to constitute a cause of action and the improper union of causes of action.

In examining a complaint consisting of 283 pages of closely-printed matter, it is somewhat difficult to extract therefrom the facts which plaintiffs contend constitute a cause of action. We think that this fairly summarizes them: About April 27, 1876, one of the plaintiffs, the Prospect Park and Coney Island Bail-road Company, became the owner of certain lands at Coney Island, on both sides of Surf avenue, the southerly boundary of which was the Atlantic ocean, and it has continued and now is in the exclusive possession thereof, except as to a portion which has been acquired by the city of New York. In August, 1888, Catherine A. Balmer, another of plaintiffs, and about March 12, 1904, Dreamland, a third of the plaintiffs named, each became the owner of separate pieces of land similarly situated, the former lying to the east and the latter to the west of the railroad lands. Each of these plaintiffs has since these ■respective dates maintained exclusive possession of the lands conveyed to them, subject to the exception above noted. In February, 1912, the city of New York instituted proceedings to acquire a portion of the lands owned by the railroad company, Balmer and Dreamland respectively, for a public park, and on March 14, 1912, title to said lands was, pursuant to statute, vested in the city of New York. The condemnation proceedings are still pending, and the amount of the award to be made to the owners of the land thus acquired has not yet been determined. In September, 1910, plaintiffs Charles L. Feltman and Alfred Feltman became the owners of another piece of land situated similarly to those above described, and lying to the west of the parcel owned by Dreamland. No portion of that land has been acquired by the city. The complaint alleges that they are now and that they and their immediate predecessors in title for more than 100 years have been in continued and exclusive possession of the land thus acquired by them. Although Charles L. Feltman and Alfred Feltman, as administrators of the estate of Charles Feltman, deceased, have also been named as parties plaintiff, there is no suggestion that in them representative capacity they have any interest in said lands nor in the subject-matter of this action. Each of plaintiffs contends that its and their original sources of title were various patents to the town of Gravesend, the first made in December, 1645, by Willem Kieft, Governor of the province of New Netherlands, and others, confirmatory of and supplemental to this, made on August 13, 1668, July 1, 1610, and September 10, 1686. It is further alleged that each of these patents was confirmed by an act of the Colonial Assembly of New York, passed in 1691, and'by various Constitutions adopted by the People of this State subsequently to that date. On February 23,1912, the defendants James E. Morey, Nina Hayes and Elizabeth B. Pine brought an action of ejectment against plaintiff Dreamland to recover possession of an undivided two-thirds part of the premises belonging to it, and upon the same date a similar action against the plaintiff Catherine A. Balmer. On March 8,1912, said defendants began another action of a similar character against plaintiffs Charles L. Feltman and Alfred Feltman, both individually and as administrators of the estate of Charles Feltman, deceased. Each of these actions is still pending. No action has as yet been commenced against plaintiff the railroad company, but it is alleged that said defendants have threatened to bring such an action, and that they have commenced various other actions, both at law and in equity, against various other persons not named in the complaint, who have acquired property at Coney Island directly from the town of Gravesend or its grantees, in substantially the same manner as these plaintiffs have acquired the property belonging to them. The complaint further alleges that said defendants have intervened in the proceedings now pending for condemnation by the city of New York of a portion of the lands of the railroad company, Dreamland and Bakner respectively, for a public park, and have claimed title and to be the owners of said land, and that the effect of this may be that the awards to be made in such proceedings for the value of the land acquired, instead of being paid to them directly as the owners thereof, will be paid into court to the credit of “unknown owners,” thereafter to be the subject of further litigation. It is also alleged that defendants’ only claim of title is through a deed made by one Thomas Stilwell to Barent Johnson in December, 1727, and by various subsequent conveyances and wills referred to in the complaint; that the original deed from Stilwell to Johnson did not purport to convey any of the property belonging to plaintiffs or either of them, and, in addition, that if it did include such lands, the grantor Stilwell had no title to the same, and that said actions of ejectment and the claims of defendants to the ownership of said lands are not brought and made in good faith, but for the purpose of casting a cloud upon the title of the various parcels of land owned by plaintiffs in severalty, and to induce them to buy their peace. The relief demanded is: “1st. That each and every of the above deeds upon which the said defendants assert their claim of title may be declared null and void and directed to be canceled. 2nd. That it may be adjudicated that the defendants have no title to the premises owned by the plaintiffs as hereinabove mentioned, or to those of any and all other persons who are similarly situated. 3rd. That the plaintiffs and each and every thereof are the owners of the respective premises belonging to them as hereinabove stated, l/th. That the defendants and each and every thereof may be enjoined and restrained from asserting any title to the premises belonging to the said plaintiffs respectively or to those persons similarly situated who own property on Coney Island, and from intervening or taking any proceedings under claim of being such owners in any manner whatsoever.”

It is not contended that this action can be sustained as a statutory action to determine the claims to real property. (Code Civ. Proc. §§ 1638, 1639.) Not only is the prayer for relief inappropriate, but as to a considerable portion of the property which forms the subject-matter thereof, neither of plaintiffs is now in possession of the same or claiming an estate therein, but the legal title is now in the city of New York or in other persons not named, and as to the lands now owned by the city of New York plaintiffs and defendants are only interested in the ownership of the proceeds of the sale thereof.

Neither may the action be maintained as an equitable action in the nature of a bill of peace. If the allegation of the complaint in the form of a conclusion of fact is correct, that the Stilwell deed did not include within its words of description the locus in quo, defendants’ claim is, invalid upon its face. From a copy of the deed set forth at length in the complaint, if such is not the case it will at least require proof of extrinsic facts to establish that it did include the same. In such a case a court of equity will not interfere, but will leave the party in possession to his defense. (Scott v. Onderdonk, 14 N. Y. 1; Lehman v. Roberts, 86 id. 232.)

Either the primary deed in the chain of defendants’ title did or did not include the premises in question. If it did not, then assuredly there is no equitable reason for setting such a deed aside. If it did, then either the grantor did or did not have title to the land which he purported to convey. If he did, equity may not set such deed aside, and if he did not, ’ there is no reason for so doing, since included therein is other land as to which, so far as this complaint discloses, there may be no dispute.

But appellants assert in their complaint that defendants have conspired to do injury to the plaintiffs, and that the suits brought by them are fraudulent in character, and that, therefore, the prosecution of such actions should be enjoined. But no action for a conspiracy lies when two or more persons conspire to do a lawful act in a lawful manner and cause damage thereby, even though they may have acted with a malicious motive. (Cohen v. Fisher & Co., 135 App. Div 238.) Defendants claim and assert in their pleadings in the various ejectment suits that they are the owners of an undivided interest in the premises in question, and in one of the most lawful methods possible, namely, by invoking the judgment of a court of law, they seek to have the validity of such claim determined. If under such circumstances a defendant in an action of this character, by attacking the good faith of a plaintiff therein, may bring the trial of the issue of the validity of the title into a court of equity, it is difficult to see how the constitutional provision that “ trial by jury in all cases in which it has been heretofore used shall remain inviolate forever” (Const, art. 1, § 2) becomes of any value whatever. Neither is there any allegation of fact, aside from the conclusions of plaintiffs, that defendants’ conduct is fraudulent in character that would justify the interference of a court of equity. Defendants may be entirely mistaken as to the validity of the claims which they make to the ownership of this land, but it cannot be said that they are not honestly mistaken in respect to the same.

Nor has equity jurisdiction in this case upon the ground that it is necessary to avoid a multiplicity of actions. So far as these plaintiffs are concerned, each of them is subject to one action and one only, namely, that brought to determine the validity of the title to the various pieces of land held by them in severalty. There is a distinction between many actions against many different defendants although the ground of each of these actions may be similar in character, and many actions against a single defendant growing out of the same alleged grievance. In the latter case there maybe “multiplicity” within the legal' aeceptation of that .term, but not in the former.

Neither do we think that plaintiffs here are so united in interest that they may be joined as parties in a single action. (Code Civ. Proc. §§ 446, 448, 484; Howell v. City of Buffalo, 2 Abb. Ct. App. Dec. 412; Bouton v. City of Brooklyn, 15 Barb. 375.) Each of the parties owns a distinct piece of land. Although all trace their title from the same common source, it is by entirely separate and distinct chains. One party may have a good title and the other a defective one. In the ejectment suits one may succeed and another fail. Except sentimentally, neither is concerned in the result of the action against the other. In Howell v. City of Buffalo (supra) the court said: “ The subject matter in this case is land, and every plaintiff must be interested in the same piece of land. * * * There is an improper joinder of plaintiffs who claim no common interest, but assert distinct and several claims against one and the same defendant. This is not allowable. ” Neither may it be treated as an action brought by one or more plaintiffs for the benefit of others similarly situated. In Bouton v. City of Brooklyn (supra) the court said: “The lands supposed to be affected by the cloud, are held in severalty, and the nonjoinder of the others could not be set up as a reason why the action at the suit of one should not proceed. The reason, therefore, why the law allows bills to he filed at the suit of a few, in behalf of themselves and others, does not apply to such a case. Seen in this aspect, the action is for the benefit of the plaintiff alone; and is to he disposed of in the same manner as if the charges and allusions to others were stricken from the complaint.”

Neither can it be said that plaintiffs have a common interest in the fund which will arise in the condemnation proceedings above referred to after the commissioners shall have determined the amount to be awarded for the lands taken, and their report shall have been confirmed. Although the source of the fund may be common to all, the interest therein of each of plaintiffs whose land is taken will be separate and distinct. But it would he sufficient to destroy any contention that the action might be maintained upon such a ground that no part of the land owned by plaintiffs Feltman is taken in such proceedings, and that they will never have any interest in said fund or any portion thereof. It may be that plaintiffs severally will be put to greater trouble and expense in defending the various actions of ejectment brought against them than if they were permitted to unite in an action of this nature and have the conflicting claims of title determined therein. But that alone is not sufficient to entitle them to the relief asked for.

The judgment should be affirmed, with costs.

Jenks, P. J., Thomas, Carr and Woodward, JJ., concurred.

Final judgment affirmed, with costs. 
      
       See 1 Colonial Laws of IT. Y. (Comp. Stat. Rev. Comm.) 334, chap. 3; Const. 1777, art. 36; Const. 1831, art. 7, § 14; Const. 1846, art. 1, § 18; Const. 1894, art. 1, § 17.—[Rep.
     