
    Orville M. Barkley, Plaintiff, v. Stephen K. Williams et al., Defendants.
    (Supreme Court, Onondaga Special Term,
    March, 1900.)
    Joinder of causes of action — Inconsistency of an action against attorneys for a breach, of the contract of employment and one for a penalty under Code Civ. Pro., § 71 — Effect of Code Civ. Pro., § 484, subd. 9 — Perm of demurrer.
    A complaint in an action against attorneys alleged that they agreed properly to prosecute for the plaintiff an action and charged that they had conducted it in a negligent manner. It then alleged a second cause of action, under section'71 of the Code of Civil Procedure, imposing treble damages upon an attorney or counselor who wilfully delays his client’s cause with a view to his own gain. The defendants demurred upon the ground that the plaintiff had united a cause of action on contract with one for a penalty under said section 71, that this appeared on "the face of the complaint, and that such union was improper.
    
      Held, that the demurrer was proper, as the causes of action were inconsistent, the first being on contract and the second for a statutory penalty.
    That they could not be joined under subdivision 9 of section 484 of the Code of. Civil Procedure, as claims “ arising out of the same transaction or transactions connected with the same subject of action ”.
    That, under the form of the demurrer, the defendants were entitled to oppose the joinder upon the ground that the causes of action did not come within any one subdivision of section 484 and also upon the ground that they were inconsistent.
    Demübbeb to plaintiff’s complaint.
    Thomas Raines, for demurrer.
    F. C. Sargent, opposed.
   Hiscock, J.

Defendants’ demurrer is upon the ground that plaintiff has united in his complaint two causes of action which cannot be so united, viz.: One cause of action upon contract and another one based upon section 71, Code, for wilful misconduct by the defendants as attorneys in the prosecution of an action.

Plaintiff seeks to recover damages for the alleged shortcomings of defendants in prosecuting an action for him. Two causes of action are not separately stated in his complaint. It is perfectly well settled, however, that the failure to so state them does not prevent demurrer upon the grounds here urged if in fact two causes of action are set forth and improperly united.

Ho question has been made by plaintiff upon the argument but that two causes of action are alleged. I think none could well be. There is no dispute but that one of these is based upon section 71, Code, already referred to, and which in substance amongst other things provides that an attorney who wilfully delays his client’s cause with a view to his own gain shall forfeit treble damages. A dispute arises whether the other cause of action is upon contract for the failure of defendants to properly conduct the action. This view is urged by defendants. Plaintiff’s counsel, upon the other hand, insists that it is in tort for the negligent and improper conduct of defendants. Inasmuch as the determination of this question may have some bearing upon the disposition of the main issue I will consider it briefly.'

This cause of action which is stated first alleges a distinct and affirmative agreement and undertaking upon the part of the defendants to commence, prosecute and conduct the action in question in a proper, skillful, etc., manner. It then alleges that they acted in a negligent,' unskillful and improper manner. The word “ negligent ” may not have been an especially appropriate word for the pleader to use, but there can be no doubt that the clause last quoted was intended by him to set forth a breach of the contract just before alleged. Thus we have plaintiff basing this cause of action upon a specific express agreement and contract. He does not for the basis of his complaint rely upon any implied contract even, or upon those obligations and duties which the law imposed upon defendants when they were retained as attorneys. There seems to me no doubt but that he states a cause of action on contract instead of for negligence and tort. Tort denotes an injury inflicted otherwise than by a mere breach of contract,” and negligence is the inadvertent failure to use ordinary care in observing or performing a noncontractual duty implied by law. Am. & Eng. Ency. of Law (1st ed.).

If I am right in the foregoing conclusion we have plaintiff attempting to gather into' one complaint a cause of action upon contract and another one to recover a statutory forfeiture or penalty.

An examination of section 484, providing what causes of action may be united in one complaint (in view of the definition given of the terms personal injuries ” and “ injuries to personal property ” occurring in that section, by Code, section 3343, subdivisions 9 and 10) makes it clear that "these two causes of action can be united, if at all, only under subdivision 9 of said section 484. That subdivision allows the joinder of two causes of action brought to recover “ TJpon claims arising out of the same transaction, or transactions connected with the same subject of action,” provided it appears upon the face of the complaint that they do both belong to such subdivision and are consistent with each other.

It does not appear upon the face of the complaint that the two claims made by plaintiff arose out of the same transaction. One claim arose out of the alleged wilful delay by defendants, and the other out of their alleged improper and unskillful conduct. The transaction made up of the acts constituting wilful misconduct would not necessarily be the same as that constituting negligence or unskillfulness. In fact, it naturally would not be, and the complaint contains no allegation that it was the same. This attempted union of causes of action must, therefore, seek support upon the theory that they arise out of transactions connected with the same subject of action.”

The courts have so many times criticised the uncertainty of the language just quoted and labored to define its meaning, that it is probably not desirable that I should at length attempt to do either. N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592, 604.

A text writer who has considered the subject most carefully and analytically concludes that this last provision was not intended to-apply to actions at law at all, but only to those in equity. Pom. Code (3d ed.), § 475.

It is at least established beyond much doubt that its construction and application are to be largely measured by expediency and the circumstances of each case rather than by any inflexible rule. Wiles v. Suydam, 64 N. Y. 173, 177.

I am impressed that it should not be so interpreted as to allow plaintiff to unite in one complaint the causes of- action which he has sought to. Their nature is essentially and entirely different, and this is so even though the first one should be regarded, as urged by plaintiff’s counsel, to be for negligence instead of upon contract. One is based upon a statute; the other upon a failure to discharge a legal obligation. One seeks to recover a statutory penalty or forfeiture; the other mere damages. The line of proof which would sustain one would not establish the other. They are inconsistent and in that respect conflict with the requirements of the Code. One implies and alleges wilful, intentional commission of acts for which when established a triple liability is imposed here and a criminal liability elsewhere. Penal Code, § 148.

The other cause of action is based upon and legally charges an inadvertent omission to meet an express contract or discharge an implied duty. Definition of negligence, Am. & Eng. Ency. of Law.

The methods by which judgment upon one cause of action could be enforced would be different from those applicable to the other cause of action, if I am correct that it is upon contract. It would he utterly impracticable to try them together. While for wilful delay plaintiff would be entitled to treble damages, it would be the duty of the jury to find only single damages, leaving the same so found to be increased by the court. § 1184, Code.

Assuming that a verdict should be found for plaintiff, how is any one, plaintiff, defendants, or court, to know whether it is for damages arising from a breach of duty, express or implied, to be enforced by an ordinary judgment and execution, or for a tort criminal in its nature, to be multiplied by three and enforced if necessary by -a body execution.

Without further discussion of this point it seems to me that the demurrer should be sustained both upon reason and upon the authorities. Wiles v. Suydam, supra; Sweet v. Ingerson, 12 How. Pr. 331; Anderson v. Hill, 53 Barb. 238, 246.

The main contention of plaintiff’s counsel upon this argument has been that any inconsistency of the causes of action alleged in his complaint could not be considered because the, demurrer did not specifically refer to such element. It is true that under section 490 defendants were compelled to specifically point out the defects relied upon. But I think they have sufficiently done this. The demurrer states in substance that plaintiff has united a cause of action for breach of contract and one for treble damages under section 71; that this appears upon the face of the complaint, and that such union is improper. Section 484 prescribed the test by which to decide whether plaintiff’s practice has been proper or improper. Defendants are entitled to show, I think, in support of their claim that the causes of action cannot be united under that section, first, because they do not both come within any one subdivision, and secondly, because they are inconsistent. Referring to the causes of action and charging that the attempt to unite them was improper, I do not think it was necessary for the defendants to further say that it was improper because they did not both come within any one class, and because they were inconsistent.

The demurrer is sustained, with costs to be taxed as in a regular action.

Demurrer sustained, with costs.  