
    Obville M. Barkley, Plaintiff, v. Stephen K. Williams et al., Defendants.
    (Supreme Court, Onondaga Chambers,
    July, 1899.)
    Attorneys — Misjoinder of action against.
    A cause of action against attorneys for their negligent and unskillful management of an action and one for their intentional wrong- . doing, in that they did “ willfully delay said action with a view of their own gain ”, cannot properly be united in the same complaint, as the causes of action are inconsistent.
    Motion to strike out defendants’ demurrer as frivolous.
    Frank 0. Sargent, for motion.
    Thomas Raines, opposed.
   Hiscock, J.

The action is brought to recover damages against the defendants, who are attorneys, for their alleged improper management of an action brought by them in behalf of the plaintiff. Defendants have demurred to the complaint upon the ground that several causes of action are therein improperly united, and it as this demurrer which plaintiff seeks to have stricken out as frivolous.

The motion is denied, with ten dollars costs, to abide event. It as too well settled to require discussion, that relief of this kind will •only be granted where the right thereto is perfectly plain and unquestioned. I do not "think that that is this case. It would seem to me that the plaintiff has plainly united in his complaint •one cause of action against defendants for negligent and unskillful conduct, and another one for intentional and willful wrongdoing. After various introductory allegations, he alleges in one place that the defendants conducted and prosecuted the action in behalf of plaintiff in a negligent, unskillful and improper manner,” and then alleges further on that they did willfully delay said action with a yiew of their own gain,” etc. These allegations plainly set forth two entirely distinct and different causes of complaint against the defendants. Rot only that, but they are not •consistent with each other. One is based upon incompetent but unintentional shortcomings; the other involves an affirmative intent and design to injure plaintiff.

Motion denied, with ten dollars costs to abide event.  