
    ROBERT F. SHEPARD, MARY N. SHEPARD and FRANCES S. SHEPARD, Individually, and as Administratrix of the Estate of FRANCIS N. SHEPARD, Deceased, and IRENE F. SHEPARD, et al., Infants by Guardian, &c., Respondents, v. THE MANHATTAN RAILWAY COMPANY, et al., Appellants.
    
      Complaint.—Union of several causes of action and parties.—Under Section 484 of the Code of Civil Procedure, it must appear on the face of the Complaint that all the causes, so united, belong to one of the subdivisions of this section, that they are consistent with each other, and affect all the parties to the action.-—Misjoinder.—Injunction, &c.
    
    It is not a misjoinder if all the plaintiffs have an interest in the action, although it is not a co-extensive interest. The action should concern an interest in common.
    The injunction asked was against the continued operation of the elevated railroad of defendants, and the maintenance of the structure. The remedy for this was one equitable cause of action for the injunction and the recovery of the damages caused, at least, before the commencement of the action.
    Before 1887, Francis N. Shepard, and the plaintiffs Robert F. Shepard and Mary N. Shepard were the tenants in common of the premises affected by the construction and operation of the railroad of defendants. Francis N. Shepard died in 1887, leaving as his heirs two children, who became tenants in common with the owners of the other two undivided third parts. Although the heirs could not recover for damages before the death of their father, yet it was proper to make them plaintiffs. The other tenants in common had a right to recover damages inflicted continuously, from before the death of the father of the children, and afterwards to the bringing of the action, at least. The children had a right to recover one third of the damages from the time of their father’s death; therefore, all the tenants in common became interested in the damage done.
    As to Frances S. Shepard, as administratrix and individually, she had a right to the damage suffered by the land owned by her intestate, Francis N. Shepard, prior to his death, and her personal interest as widow without dower assigned was such an interest as might be protected by an injunction against the effects upon the land in which she had a dower interest.
    
      Held, that there was no misjoinder of action or of parties.
    
      Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 6, 1889.
    Appeal from an interlocutory judgment overruling a demurrer to the amended complaint.
    
      Davies & Rapadlo, attorneys, and Edward S. Rapallo and Brainard Tolies, of counsel, for appellants, argued :—
    I. Causes of action cannot properly be united unless they all affect all the parties to the action. Section 484 of the Code of Civil Procedure, after enumerating nine different classes of causes of action, prescribes the following conditions npon which they may be united in the same complaint: “ 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 ; and, except as otherwise prescribed by law, that they effect all the parties to the action.” The tendency of Code legislation has been to make the rules of pleading and practice as few and as simple as possible, and to assimilate the legal and equitable procedure. The rule laid down with respect to the joinder of causes of action, viz., that they should all affect all the parties to the action, applies without distinction to causes of action which are legal or equitable, or both. It is enough for the purpose of this appeal to say that it is the law of the land and that it is too short and plain to be evaded ; it must either be obeyed or disregarded. No rule of policy or convenience can sanction the violation of a plain statutory requirement.
    II. Three causes of action are set forth in the complaint. The phrase “ cause of action,” as used in the Code, does not mean merely a connected narrative of one transaction, or the general topic of a controversy. It means a right which may be made the basis of an action. Such a right must be complete, indivisible and of legal cognizance. It is the unit of pleading. No conception in the law is more fixed and definite. The law of procedure could not exist without it. The surest test to determine whether .two causes of action are distinct is that laid down by the court of appeals in Davis v. N. Y., L. E. & W. R. R. Co., 110 N. Y., 646, viz., whether judgment on one would have barred the enforcement of the other. Applying that principle to the case at bar, there appear distinctly to be three causes of action in this complaint: (1) A cause of action for damages to the premises described in the complaint prior to the death of Francis N. Shepard. (2) A cause of action for damages to the premises described in the complaint subsequent to the death of Francis N. Shepard. (3) A cause of action for an injunction. Each of these three causes of action could be separately enforced, in a separate action, without barring the right to enforce any of the others, and without the presence in any one of the actions of all the plaintiffs in the action at bar.
    III. The administratrix of Francis N. Shepard is not affected by the cause of action for an injunction. (1) The first cause of action specified under the preceding point does not affect the plaintiffs, Francis B. Shepard, Jr., Irene F. Shepard and Dorothy B. Shepard. It is true that they are the children of Francis N. Shepard, and they may become entitled to an interest in any balance of his personal estate which may remain after the claims of creditors are satisfied. But they have no present legal or equitable title to his unadministered personalty which can make them proper parties to this cause of action. Their interest is almost as contingent as in the lifetime of their father. If an administrator is a trustee for creditors and next of kin, it is a trust ordinarily to be recognized and enforced only in a Surrogate’s Court, and this Court will not assume jurisdiction over it except under special and extraordinary circumstances such as do not appear in this complaint. (2) The second cause of action specified under the preceding point does not affect the plaintiff Frances S. Shepard, either individually or as administratrix. It does not affect her as administratrix, because it is for injuries inflicted to the fealty after her intestate’s death. It does not affect her individually because she has not and has never had any estate in this land, or any right to any portion of the rents and profits. She has merely a contingent interest that, at some future time, dower may be assigned to her out of the land. (3) The third cause of action specified under the preceding point does not affect Frances S. Shepard, as administratrix of Francis N. Shepard. We select this point for a more extended discussion because it cannot be questioned that the complaint states a cause of action for an injunction, or that Frances S. Shepard is a party to t the action ; and if we establish that one of the causes of action fails to affect one of the parties it is sufficient for the purpose of the appeal. Of course it would be possible for circumstances to exist which would make the administratrix of Francis N. Shepard a proper party to the cause of action for an injunction, just as they might exist -in the case of any other person whatever. But no such circumstances appear in the complaint, and the requirement of the Code is, that it shall appear upon the face of the complaint that the causes of action affect, all the parties. The only escape from the conclusion that the demurrer must be sustained lies in the bold suggestion that Frances S. Shepard, as administratrix and Frances S. Shepard individually, constitute one party.
    
    
      
      Peckham & Tyler, attorneys and of counsel for respondents, argued :—
    I. The first and second grounds of demurrer really state the same objection, viz. : that actions are united improperly, as defendants claim. If Francis N. Shepard had not died his brother and sister could have sued with him in one action for all damages suffered. Why should they be compelled to bring two actions merely because of his death ? This precise point has been decided adversely to the defendants by the special and general terms of the Common Pleas in the case of McCrae v. N. Y. Elevated R. R. (decided at General Term in February, 1886) ; see 13 Daly, 302. Judge J. F. Daly there says, at special term: “ Mrs. McCrae, as executrix of Edward P. McCrae,. and also suing in her own right as devisee of the said Edward, is joined as plaintiff with three other persons, who, with the said Edward, were the owners as tenants in common of the premises situated on the northwesterly corner of Greenwich and Eector streets at the time that the structures of the Elevated Eailway, which are complained of in this action, were erected in Greenwich street.” * * * “ All the other plaintiffs except Mrs. McCrae are proper parties to all the causes of action set forth. Mrs. McCrae is both executrix and devisee, and in the former capacity is entitled, with the other plaintiffs, to recover the damages accruing up to her husband’s death, and in the latter capacity is entitled with the other plaintiffs to the damages after his death. The question is whether she can unite both her causes of action in one complaint, it being conceded that the other plaintiffs might do so, as far as their recovery is concerned. Although the demurrer is for a misjoinder of parties, it is in effect a demurrer for uniting improperly two different causes of action on the part of Mrs. McCrae. It would seem unfortunate if these causes of action (which in this case are united in one individual, although she is to recover in different capacities) must be severed, for it requires the splitting of what would be a single cause of action in her co-plaintiffs, viz.: the claim for continuing damages. I think we have authority for holding that there is not an improper union of causes of action, and consequently not an improper joinder of parties plaintiff.” And at the general term, Judge Larremore says : * * * “It does appear from the complaint, as a whole, that the plaintiff has an interest in the cause of action, and is a proper party to its final determination. This action is on the equity side of the court, in which all parties having an interest, contingent or otherwise, are required to be brought in, in order to obtain a final adjudication of the matters in dispute. That a party has asked for more relief than he was entitled to, is no ground of demurrer. If he is entitled to any relief he is properly joined in the action (Price v. Brown, 10 Abb. N. C., 67, and cases there cited). The order appealed from should be affirmed, with costs.” The above case in principle covers this action. In that case. Mrs. McCrae was allowed to recover in two different capacities, namely, as executrix and devisee. In the present case Mrs. Shepard is interested as administratrix and widow. Her children are interested as next of kin and heirs in both past and future damages, and her capacity as administratrix is purely formal to enable her to recover for herself and children the past damage.
    II. The theory of the Code is that all parties in interest in an action must be joined. In the theory of the law the heirs and next of kin are the real parties in interest in an action brought by the administrators. The administrators merely sue without them on the principle that the trustee of an express trust sues without joining with him the person for whose benefit the action is prosecuted. In this aspect of the case, when a person dies, the administrators, heirs and next of kin all together constitute only one party to take his place. See Armstrong v. Hall, 17 How. Pr., 76, where Allen, J., says : “The object of the Code seems to have been to avoid a multiplicity of actions, and to effect, if possible, between the same parties in one action an end of the controversy. The testator, if living, could not recover but in one-action, and by section 111, every action must be brought in the name of the party in interest. The devisees and legatees are the real parties under a will in an action brought by the executors; but, by section 119, the executor or administrator or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted.” * * * “ Here the defendant ought not to complain that the plaintiff has commenced but one suit against him when she ought to have commenced two. She unites the right of E> A, as executrix, with the right of E. A. as devisee, both-rights accruing under a contract made by the testator with the defendant, and growing out of the same matter. She has a common interest as executrix and devisee in the subject-matter of the action, and this would be good ground for joining in a court of equity.”
    III. As an individual Mrs. Shepard is interested in abating the nuisance on account of her dower right, and if we had not made her a party the defendants would have demurred for defect of parties. In her individual capacity she is certainly a proper party to an equity suit.
   By the Court—Sedgwick, Ch. J.

The only ground taken on the argument, as a reason for reversal, wasi that the complaint unites causes of action which do not affect all the parties under section 484 of the Code of Civil Procedure, which declared, after union of causes had been allowed by the previous section, “ But it must appear upon the face of the complaint that all the causes so united, belong to one of the foregoing subdivisions of this section, that they are consistent with each other, and. except as otherwise prescribed by law, that they affect all parties to the action.’’

Leaving unconsidered for a while the effect of making a party-plaintiff or parties-plaintiff, Frances S. Shepard individually, and as administratrix of Francis N. Shepard, it may first be said there is not in the complaint more than one cause of action. That is an equitable cause of action for an injunction which carries with it an equitable right to recover the damages that have followed from the trespass, as to which the plaintiffs have the remedy of an injunction. • This latter right to damages is not a separate legal cause of action, but a part of an equitable cause of action. In such case it is proper to make any one who has a common or joint interest in the damages actually done, or in any part of them, a party-plaintiff. Section 446 Code Civil Procedure ; Story’s Equity Pleadings, §§ 72 to 76a. It is not a misjoinder if all the plaintiffs have an interest in the action, although it is not a co-extensive interest. A tenant for life and remainderman may join as plaintiffs in a suit that concerns their interest in the estate (Story’s Equity Pleadings, § 27a) a fortiorari, when the action concerns a common interest. All this is in part grounded on the equitable consideration that as few litigations as possible should be made against the defendants.

The injunction asked was against the continued operation of the elevated road of the defendants and the maintenance of its structure. The remedy for this was one equitable cause of action for the injunction and the recovery of the damages caused, at least, before the bringing of the action.

Before 1887, the plaintiffs, Robert F. Shepard, jyiary N. Shepard and Francis N. Shepard, were the tenants in common of the premises affected by the railroad. In 1887 Francis N. Shepard died, leaving as his heirs his children. The children became tenants in common with the owners of the other two undivided third parts. Although the heirs could not recover for damages before the death of their father, yet, under the rules stated, it was proper to make them plaintiffs. The other tenants in common had a right to recover damages inflicted continuously from before the death of the father of the children and afterwards to the bringing of the action, at least. The children had a right to the one-third of the damages from the time of their father’s death. All the tenants in common had become interested in the damage done. No question is made as to how infant heirs, when plaintiffs, should be represented.

Now, going to the joinder of Frances S. Shepard, as administratrix and individually, it should be held that she had a right, as administratrix, to the. damage that had been suffered by the land owned by her intestate Francis N. Shepard, and that had been suffered before his death, and for that reason could be made plaintiff.

I will also hold that her personal interest, as widow without dower assigned, was such an interest that it might be protected by injunction against the effects upon the land in which she might have an estate in dower. This is an inference from Simar v. Canaday, 53 N. Y. 298. The same case supports the joinder of the other parties.

I further suggest, that as to Frances S. Shepard, individually, the question is, not whether she is entitled to recover as having a right of dower before assignment, but whether her claim-to be so entitled, from its nature, is a part of an alleged cause so that she could be a plaintiff.

The judgment and order should be affirmed with costs.

Freedman and O’Gorman, JJ., concurred.  