
    Henry P. Neun, Respondent, v. B. H. Bacon Company and Amelia Van Deusen, Appellants.
    Fourth Department,
    March 9, 1910.
    Pleading — misjoinder of actions — demurrer — practice — severance prior to decision of demurrer unauthorized — section 479, Code Civil Procedure, construed.
    Where defendants have demurred to a complaint uniting a cause of action against one of them for goods sold and against the other on an independent contract assuming the debt of the codefendant, upon the ground that the causes of action are improperly united, the court has no power, prior to the decision of the demurrer, to permit the plaintiff to sever the action into two actions against the defendants severally and to serve an amended complaint in each action. This is true, although the right to amend as of course had not expired.
    Although the plaintiff might have amended as of course, as the time had not expired, he could not, after demurrer for misjoinder of actions, sever the actions under the guise of an amendment.
    Although section 479 of the Code of Civil Procedure empowers the court on the misjoinder of actions to direct that they be divided into as many actions as are necessary for the proper determination of the issues, the section does not authorize s.uch severance before the decision of the demurrer to the complaint for misjoinder, as it would deprive the defendants of the benefit of the demurrers. Said section merely preserves the causes of action if the demurrer for misjoinder be sustained and the plaintiff is not required to begin anew so as to be affected by the Statute of Limitations.
    Appeal by the defendants, B. H. Bacon Company and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 26th day of November, 1909, granting the plaintiff’s motion to divide the action into two actions against the defendants separately.
    
      
      Everett 0. Gibbs, for the appellants!
    
      William F. Eynn, for the respondent.
   Spring, J.:

The plaintiff commenced this action in March, 1909, to. recover the balance due for merchandise sold and delivered to the defendant Bacon Company, a domestic corporation, between May, 1902, and April, 1903.

In the 3d paragraph of the complaint, in an attempt to state a cause of action against the defendant Amelia Yan Deusen, it was alleged that at the time of said sale she was- a stockholder in said corporation and “ that thereafter and since the said first day of April, 1903, in a sale of her said stock, which was practically the whole stock of said Company, the said Amelia Yan Deusen, for value received, assumed - and agreed in writing to ¿ay.the plaintiff the said balance above alleged to be then owing to- him by said B. H. Bacon Company, to wit, said sum of Nine hundred eighty-four dollars and one cent ($984.01), with interest thereon from April 1st, 1903.”

A demurrer was interposed by each defendant. on the ground that several causes of action were improperly united. > After service of such demurrers and before the time to serve an amended complaint had expired, the plaintiff'obtained an order requiring the ' defendants to show cause at a Special Term why an order should not be granted permitting the plaintiff to divide the action into two .actions against the defendants severally and permitting him to serve an amended complaint upon each of the defendánts in the new actions, when so ordered. The matter came on at Special Term and the- order was granted dividing the causes of action in conformity to the application of the plaintiff, and granting him “ leave to serve amended complaints in each of said actions, as so' divided, with allegations appropriate thereto, as he shall be advised.”

The causes of action alleged were on independent contracts not arising out of the same transaction, the liability of the defendant Yan Deusen being in the nature of a contract of suretyship Or indemnity to the person who purchased from her the stock in the corporation.

By .section 542 of the Code of Civil Procedure the plaintiff might have amended his complaint of course, and without costs. If he had availed himself of this remedy it would not have relieved him from the dilemma in which he was placed by the interposition of the demurrers. He could not sever the causes of action by amending his complaint containing one cause against the defendant corporation and another independent cause of action against the defendant Van Deusen upon her contract of guaranty.

The demurrers that had been interposed raised an issue of law that must be tried, unless the plaintiff could get rid of them by serving an amended complaint, and which would not accomplish the,result as already suggested.

Section 497 of the Code of Civil Procedure provides: “If a demurrer to a complaint is allowed, because two or inore causes of action have been improperly united, the court may, in its discretion, and upon such terms as are just, direct that the action be divided into as many actions as are necessary for the proper determination of the causes of action therein stated.” The authority in pursuance of this section has been several times exercised. (Roehr v. liebmann, 9 App. Div. 247, 249 ; Myers v. Lederer, 117 id. 27, 30.)

The Code of Civil Procedure, therefore, preserves to a plaintiff his causes of action where it is held on demurrer that they are improperly united, so that he, is not obliged to commence anew. If important, he is in the same condition as if the demurrer had been overruled so far as the defense of the Statute of Limitations is concerned.

In this case the plaintiff did not amend and he did not await the trial and decision of the. demurrers in the orderly way to protect himself. He made this motion, evidently, in order to avoid the payment of the costs of the demurrers, and has succeeded, for only motion costs were imposed, and he has gained every advantage and none of the disadvantages resulting from the allowance of the demurrers at the trial.

I find no authority for this practice. The demurrer is a pleading and it can be effectually killed by the service of an amended pleading within section 542, and I know of no other way." In this case the demurrers in effect have been upheld and their purpose thwarted by a short cut which finds no warrant in the Code procedure.

The plaintiff, apparently, concedes that he has improperly united two causes of action by joining in one action two defendants against whom he may have separate, distinct causes of action, although that question is not before us. He wished to get rid of these pleadings which arc fatal to the maintenance of his action as now laid, and has attained his purpose by this order. The practice prescribed in ■section 497 results-in disposing of the demurrer when sustained. The order in question does not allow or disallow the demurrers. There has been no trial of the issues of law which they raise.

Section 723 of the Code of Civil Procedure is the omnium gatherum of powers in the courts to make amendments, but the widest interpretation to any or all of its provisions does not justify the practice adopted on this proceeding.

There are several sections of the Code of Civil Procedure by which the séverance of a cause or causes of action is permitted, but not one of them pertains to a proceeding like the present.

In section 511, when the answer admits a part of the plaintiff’s claim', the court may, upon the motion of the plaintiff, order that the action be severed and that' judgment be entered for the plaintiff for the part admitted.

In section .1220 where an issue of law and one of fact arise in different causes of action contained in the complaint, final judgment may be obtained with respect to one or more of the causes of action alleged, and the action continued as to the residue.

Sections 1522 and 1523 relate to severance in actions concerning real- property where, pending the.action, different persons succeed to different parcels by reason of the death of a party, etc. So, in an action against two or more defendants, where a several judgment is proper, the court may, in its discretion', render judgment, or require the plaintiff to take judgment against one or more of the parties, and the severance of the action may be ordered for the purpose of entering the judgment, and continuing as to the rest of the defendants. (§ 1205.)

The order should be reversed, with ten dollars costs and disbursements, and the application denied, with ten dollars costs.

All concurred,

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. ■ -  