
    John J. Adams, Pl’ff, v. Marietta R. Stevens et al., Def’ts.
    
      (New York Common Pleas, Special Term,
    
    
      Filed February, 1894.)
    
    1. Pleadings—Demurrer.
    In a complaint against several defendants, causes of action may be united, unless each affects all the defendants.
    2. Same.
    The defendants may jointly demur for misjoinder of causes of action.
    3. Same.
    Such demurrer lies, though the causes of action are undistinguishably blended in a single count or complaint.
    
      Melville H. Regensburger for pl’ff; Noel Gale for def’ts.
   Pryor, 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 defendants 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 action. Hess v. B & N. R. R. Co., 29 Barb. 39.

And the demurrer is not obviated by the fact that the several causes of action are undistinguishably 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 are 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 Ban-kin ; and it arises on his subsequent and independent retainer of the plaintiff. True, Bankin’s retainer of the plaintiff was, if you please, by ratification of Stevens’ previous retainer of the plaintiff ; but, all the same, it is Bankin’s contract that constitutes the basis of his obligation. True, too, that the services which plaintiff was to render on Bankin’s retainer were in respect, if you please, of the same subject-matter of litigation for which Stevens retained Bankin ; but then, this subject-matter had been assigned by Stevens to Bankin ; and so, after all, plaintiff’s services were for the benefit of Bankin and in pursuance of his retainer But, in truth, the services rendered by plaintiff to Stevens wet e in and about the recovery of certain securities, stocks and other property; and the services rendered to Bankin 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 Bankin in the litigation as her agent during her sojourn in Europe; but the complaint asserts a right of action against Bankin, and I am only to decide whether, on the face of the pleading, such cause of action affects the defendant, Stevens. Higgins v. Crichton, 11 Daly, 114. I cannot perceive how, by possibility, Stevens is concerned in a claim by plaintiff against Bankin for services rendered on his retainer and for his benefit.

Still clearer is it that Bankin has no conceivable concern in plaintiff's claim against Stevens for services rendered to her upon her retainer and before Bankin succeeded to any interest in the subject-matter of those services. The case is not of a joint or mutual interest between Stevens and Bankin 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. Rider Life Raft Co. v. Roach, 97 N. Y.,. 378, 382.

The conclusion upon the reason of the case is sustained by authority. Tidbits v. Percy, 24 Barb. 39, 42; Brewster v. Silence, 8 N. Y., 207, 215; Hess v. B. & N. F. R. R. Co., 29 Barb., 391, 394; Kelly v. Newman, 62 How., 156; Taylor v. Manhattan R. Co., 53 Hun, 305; 25 St. Rep. 226; Pracht v. Ritter, 48 Supr., 509; Barton v. Speis, 5 Hun, 60; De Caumont v. Morgan, 21 Wk. Dig., 357; Gray v. Rothschild, 112 N. Y. 668; 20 St. Rep. 789; Church v. Stanton, 9 St. Rep., 121; Bort v. Yaw, 46 Iowa, 323; Johnson v. Kirby, 65 Cal., 482; 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. Abbott’s Trial Brief on the Pleadings, 238.

Demurrer sustained, with direction to divide the action.  