
    Benjamin Salter, Appellant, v. Bronx National Bank, Respondent.
    First Department,
    May 31, 1912.
    Pleading—joinder of actions—action on contract joined with action for conversion arid action for negligence in employing unfit agent — causes not arising out of the same transaction.
    A plaintiff feannot unite in one complaint an action for breach of contract against a bank for its refusal to repay a deposit to the plaintiff or his order with a cause of action against the same defendant for unlawfully converting a cheek or the proceeds thereof indorsed for deposit by the plaintiff and a third cause of action founded on the negligence of the defendant in employing, with knowledge, an unfit and dishonest agent, who converted to his own use a check deposited by the plaintiff.
    Such causes of action do not arise out of the same transaction; and in any event, in order for the plaintiff to join them in one complaint, the fact that they arose out of the same transaction must appear upon the face of the pleading.
    Moreover, the action on contract cannot be united with the action for conversion of the check which sounds in tort, the two being inconsistent.
    Appeal by the plaintiff, Benjamin Salter, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office óf the clerk of the county of New York on the 23d day of February,' 1912, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the complaint upon the ground of improper joinder of causes of action.
    
      Thomas W. Churchill of counsel [Ernest W. Marlow with him on the brief], Churchill & Marlow, attorneys, for the appellant.
    
      John Hall Jones, for the respondent.
   Clarke, J.:

The first cause of action set up in the complaint alleges that the defendant is a National bank; that at divers times between the 10th day of February, 1910, and the 1st day of November, 1910, the plaintiff delivered various sums of money to the defendant, which it received on deposit, and agreed to repay to this plaintiff, or to his order, on demand; that on the 10th of February, 1911, there remained in the-hands of the defendant of the said money so deposited a balance -undrawn of $5,059.15; that on that day plaintiff duly demanded repayment of said balance; that defendant has paid $56.15, leaving a balance due of $5,003, which it refused to pay. The second cause of action alleges that on or about the 19th of August, 1910, at Friendship, N. Y., the Citizens’ National Bank made its certain check or draft directed to the National Park Bank to the order of plaintiff for the sum Of $5,000, which, on the 22d of August, 1910, plaintiff delivered to defendant duly indorsed for deposit to the plaintiff’s account with defendant bank; that thereafter, and before the 10th of February, 1911, the exact time being unknown to plaintiff, the defendant, without the knowledge or consent of the plaintiff, unlawfully converted said check or draft or the proceeds thereof to its own use: The third cause of action alleges that the defendant negligently employed and allowed to ‘ act as its vice-president and agent one Belling, among other things, for the purpose of dealing with customers and depositors of the defendant and receiving checks and money for deposit; that he was not a proper person to act as an officer of a banking corporation, and that by, reason thereof and- of. his dishonest habits and traits, the said Belling was wholly unfit and incompetent to act a@ such, agent and officer, which defendant, its president and board of directors well knew; that on or about the 22d of August, 1910, plaintiff made a deposit of a check or draft for the sum of $5,000 with defendant by delivering the same to the said Belling for deposit with the defendant to the credit of this plaintiff; that said Belling, while acting in the course of his duties as agent and officer of the defendant bank, wrongfully and unlawfully took said check, and wrongfully disposed of the same and converted it-to his own use.

In short, there are combined in one complaint an action on contract, an action for conversion, and an action for negligence for conversion by an unfit agent.

The defendant demurred upon the ground that causes of action had been improperly united, and the demurrer having been sustained, the plaintiff appeals.

Section 484 of the Code of Civil Procedure provides that “The plaintiff may unite in the same complaint two or more causes of action, whether they are such as were formerly denominated legal or equitable or both, where they are brought to recover, as follows: 1. Upon contract, express or implied. * * * 6. For injuries to personal property. * * * 9. Upon claims arising out of the same transaction or transactions, connected with the same subject of action, and not included within one of the foregoing subdivisions of this section." * * * But it must appear, upon the face of the complaint, that all the causes of action, so united, belong to one of the foregoing subdivisions of this section; that they are consistent with each other. * *

The complaint nowhere alleges that the three causes of action all arose out of the same transaction. But this must “ appear upon the face of the complaint.” On the contrary, it appears that they did not. The first cause of action alleges that “various” deposits were made at “divers” times over a period stated, and that on a certain date a certain “ balance ” was due. The other two causes of action allege the conversion of a certain check. Furthermore, the causes of action are utterly inconsistent. The first is on contract, where plaintiff necessarily delivered possession of his moneys to the defendant hank in a general deposit account. Thereby the relation of creditor and debtor was created, the moneys lost identity, control and use thereof were conferred upon defendant, and it could pay the debt with any moneys in its possession. Conversion lies where plaintiff has the title to a specific chattel, or is entitled by reason of a special property therein to possession. It is a remedy given for a wrong done ■— an action •in tort. It would seem that no two claims could be more inconsistent.

A cause of action for alienation of affections cannot be joined with one for conversion of personal property by defendant and plaintiff’s wife. (Crowell v. Truesdell, 67 App. Div. 502.)

A cause of action for negligence in putting upon the market a gun so defective that it was unsafe to use, so that; it exploded while plaintiff was using it, and his hand was blown off, cannot be joined with a cause of action alleging the sale of the gun with a warranty, and that, relying on said warranty, the plaintiff used the gun and received the injury.' (Reed v. Livermore, 101 App. Div. 254.)

Causes of action for slander and far false imprisonment cannot be united in the same complaint even if they originated simultaneously, (De Wolfe v. Abraham, 151 N. Y. 186.)

In Barkley v. Williams (30 Misc. Rep. 687), cited with approval in Reed v. Livermore (supra), the complaint united two causes of action, one upon contract, and another based upon section 71 of the Code of Civil Procedure (now section 273 of the Penal Law) for willful misconduct by the defendants as attorneys in the prosecution of the action. Mr. Justice Hiscook said: “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 willful delay by defendants, and the other out of their alleged improper and unskillful conduct. The transaction made up of the acts constituting willful 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.”

In Drexel v. Hollander (112 App. Div. 25) the complaint set up conversion as one cause of action and a rescission of the contract and a refusal to pay back the amount paid as another. Mr. Justice McLaughlin said: It may be assumed * * * that the facts pleaded show the two causes of action arise out of the same transaction, but are they consistent with each other ? ’ ■ To this inquiry it seems to me there can he but one answer. * * * The causes of action are not only inconsistent, but contradictory. The proof to. establish one would destroy the other. For conversion, plaintiff would have to prove that at the time the conversion took place he either had the title or was entitled, by reason of a special property therein, to possession. To recover under the second cause of action, plaintiff would have to prove a breach of contract.”

A cause of action for damages for breach of contract and another for damages for fraud in inducing the plaintiff to make it cannot be united, as they were not “ consistent with each other ” under subdivision 9 of section 484 of the Code of Civil Procedure, which is the only authority for uniting a cause of action on contract with one in tort. (Edison Electric Illuminating Co. v. Kalbfleisch Co., 117 App. Div. 842.)

To the same effect: Kranz v. Lewis (115 App. Div. 106); Kaufman v. Morris Building Co. (126 id. 388), and Realty Transfer Co. v. Cohn-Baer-Myers & Aronson Co. (132 id. 286).

In White v. Improved Property Holding Co. (140 App. Div. 529) an action for breach of contract was joined with an action for the conversion of personal property. Mr. Justice Laughlin said: It is quite clear, I think, that the cause of action for the wrongful conversion of personal property by the defendant is not consistent with a cause of action for the breach of an agreement on its part to safeguard the property against loss, whereby through its neglect to perform its contract duty the property was removed and appropriated by a third party. If the' property was converted by the defendant it surely was not taken by a third party through its neglect to care for it. Conversion implies a wrongful and willful act on the part of the defendant. * * * The transaction ’ upon which the cause of action for conversion is based was the conversion. * * * On the other hand the subject of the action for the breach of contract and the transaction upon which it was based are the contract and the facts constituting the breach.”

It is clear, we think, upon these authorities that the judgment sustaining the demurrer was right and should be affirmed, with costs and disbursements to the respondent, .with leave to the appellant within twenty days upon payment of costs in this court and in the court below to serve an amended complaint.

Ingraham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs.  